從慰撫金判決思考以寵物保險分散飼主風險之可能性

Abstract

動物在目前民法的規範之下屬於「物」，但近來因為動物保護觀念提升，家中所飼養的寵物，其地位也逐漸轉型，於是當寵物受到他人侵害，產生傷害或死亡時，飼主基於損害開始有向加害人請求賠償的動機，近來更進階到因為寵物的傷害、死亡，飼主對於失去寵物感到無法忍受，產生精神上的傷害，而主張要加害者賠償精神損害，即慰撫金。而現亦有判決亦將寵物認定為介於人與物之間的「獨立生命體」，認為寵物受到侵害，飼主因民法195條其他人格權法益受損，而有精神損害的求償權。惟現行體制下，多數學者雖認為其立意良好，但仍持反對意見，本文將從正反二意見中，嘗試從學說、實務之外，探討讓飼主可以從保險的補償來代替請求慰撫金的可能性。

Animals are classified as "Property" under the Civil law. However, due to the improvement of the concept of animal protection recently, the status of pets kept at home has gradually changed. Therefore, when pets are violated by others, resulting in injury or death, the owner starts to act based on the damage. There is a motive to seek compensation from the infringer. Recently, the pet owner feels unbearable to lose the pet due to the injury or death of the pet, which causes mental harm, and advocates that the injurer should compensate for the mental damage, that is, consolation money. Now there are also judgments that recognize pets as "independent living entities" between people and things, and believe that pets are infringed, and the owner has the right to claim mental damage due to damage to other legal interests of personal rights in Article 195 of the Civil Code. Although most scholars believe that its intentions are good, they still hold opposing opinions. This article will try to explore the possibility that owners can replace claims for solatium with insurance compensation from the perspective of both positive and negative opinions, in addition to theory and practice possibility.