德國民法損害賠償規範之研究

Abstract

與德國民法債編的大幅修正相較，損害賠償法的修正，並未有太多的爭議，因為此一修法並無債編修正來自歐盟買賣準則限期轉換為內國法的壓力，而是立法者認為有修改法律的需要。修法一方面是由於在過失責任、危險責任與慰撫金責任間，並無作不同規範的合理依據；一方面對於損害賠償法的變動，從立法到現今，已經有許多的變動。雖然由於法條的高度抽象化，在德國民法生效的一百年來，經由解釋與法律的繼續成長勉強應付，可是法官對法律的繼續成長有其界限，可是在實務上對於過失的證據常有舉證的困難，無法合理保護受害人。加上改革的草案早經討論，因此並沒有太多的爭議。目的之一也是讓德國法與歐洲標準接近，增強對受害人的保護與發揮合理化的效果。

A comparison of the amendment of the German Compensation Law with that of the Obligation Act indicates that the former amendment is moderate, and without much disparities by the public. The amendment of the German Obligation Law has been subjected to time pressure from the EU to integrate the Directive into domestic law, while the amendment of the German Compensation Law has not. One of the grounds for such an amendment is that the different regulations on fault liability, non-fault liability and spiritual damages do not have a sound justification. On the other hand, the Compensation Law from the time of its implementation until now, has undergone numerous changes. Though the construction of legal texts is very abstract, the German civil law that came into force over 100 years ago can still develop by means of interpretation method and the continuing growth of the law, , the judges, however have limitations imposed on judge-made laws. Since the amendment of the German Compensation Law has been discussed for quite a long time, few disputes and discrepancies have emerged in discussions on these issues. One of the purposes for amendment is to adhere closely to European standards, strengthen protection and rationalize the outcome of victim protection.