Yang Hui

(Law School Tianjin Normal University，Tianjin 300387)

Ⅰ.Presentation of the problem

There are two situations of encroachment on the right to life:first，encroachment on the right to life causes the death of victims instantly or on the spot;second，encroachment on the right to life doesn’t cause the instant death of victims，and they die after a while.The paper refers to the former situation as“instant death”and the latter as“interval death”.

In both cases，civil law will provide relief and inflictors will provide compensation for the close relatives of the dead.However，there are some differences.It is a pity that the differences between instant death and interval death are neglected in studies.Therefore，we will specialize in the compensation for damage in instant death in this paper.For the convenience of the discussion，first，this paper only focuses on the encroachment of a certain inflictor，without taking into consideration of the situation where the inflictor is not compensator.Second，this paper only studies the situation where the dead has close relatives，without taking into consideration of the situation where the dead has no close relatives.Third，this paper only studies the situation where the close relatives of the dead are the inheritors of the dead.

Ⅱ.The act body of the compensation for damages

1.The“paradox”of civil law:the victim(the dead)cannot be compensated

The civil right of natural person begins with one’s birth and ends with one’s death.A natural person will lose his civil right when he is violated to death.Then he cannot enjoy the compensation provided by civil right.That is the famous“paradox”of civil right.

The right to life，as the most important and basic right of personality，cannot be compensated like other rights of personality when it is encroached.However，one will not be the subject of civil law when one dies，so it is unnecessary and impossible to provide compensation to him，which is the limit of civil law.

We hold that the dead cannot get the compensation provided by law;therefore，it is unnecessary to stipulate some exceptional cases.And even if some exceptional cases are stipulated，the compensation cannot be provided to the dead.Instead，it can be given the close relatives of the dead.

2.The compensation claimant:close relatives of the dead

The effect of death can be expansive or transitive，and all the damage will be transferred to the close relatives，leading to the deterioration of their living conditions.That is to say，encroachment on the right to life of the victim violates the identity right of his close relatives，which causes spiritual pain and material loss.As a result，they have right to claim compensation for the damages caused by the inflictor.

Besides，the close relatives discussed in this paper refer to all the close relatives of the dead.They act as an entirety，which means that several close relatives can act as co-plaintiffs when starting the suit.

It needs to be clarified that this paper argues that all close relatives should be regarded as co-plaintiffs in co-litigation so as to raise efficiency，which is not contradictory to the detailed and specific compensation for damages.For example，as for spiritual damages，some close relatives don’t suffer spiritual pain at all(for instance，a father who values the male child only and constantly maltreats his daughter when she is alive)，while other close relatives suffer a lot，then the compensation for spiritual damages should go to the latter.

3.The third party beside the close relatives:another claimant?

In real life，the payer of medical treatment and funeral expenses may be the vic-tim himself，his close relatives or the third party(such as warm-hearted neighbors or rich distant relatives).The payment of the third party belongs to voluntary service in civil law.Therefore，the third party can only claim compensation to the close relatives of the dead in accordance to voluntary service，and then the close relatives of the dead claim compensation to the inflictor.However，the third party cannot claim compensation to the inflictor directly，which makes the whole process more troublesome.

In order to carry forward the traditional social virtues of“mutual help”and better protect the rights of the third party in voluntary service，Tort Liability Law endows the third party who actually pays for the medical treatment and funeral expenses with the right of directly claiming compensation to the inflictor，which can not only reduce the cost of realizing the right for the third party，but also reduce the risk of not realizing the right thanks to the options provided for the claim.The voluntary service involved with encroachment refers to the situation where damages are done after the encroachment.

The paper will discuss about the medical expenses to save space.Medical expenses refer to the payment paid by the debtor to the hospital involved.The victim is the debtor，but as the inheritor of the victim，the close relatives of the victim are also obliged to pay for the expenses on condition that the victim does not pay for them.The third party pays for the expenses，and the beneficiary is the dead or his close relatives.And in this case，the inflictor cannot dodge the responsibility of providing compensation for the close relatives of the dead.The inflictor can never be the beneficiary.Therefore，the third party has no right to recover the medical expenses to the inflictor on the basis of unjust enrichment.

Ⅲ.The foundation of the right to claim of the compensation for damages

1.Inheriting by legislation has insurmountable defects

There are many theories concerning inheriting by legislation.In our view，all these theories cannot get rid of the perplexity that“death is the premise of compensation”and that“inheritance follows death”，therefore，theoretically speaking，they have insurmountable defects.

2.Inheriting by legislation is lower than the theory of inherent damages in terms of amount of compensation

The amount of compensation from the inflictor means a lot for the close relatives of the dead，so it cannot be neglected.But in instant death，is the amount of compensation higher than that of the inherent damages?

In instant death，unlike interval death，the damages of the inflictor do not cover medical expenses，cost of lost labor and spiritual pain，but only include the loss of life and“income of future lifetime”.The loss of life can never be compensated，so the close relatives of the dead can only secure“income of future lifetime”from the inflictor.

According to the theory of inherent damages，the damages compensation range from compensation for spiritual damages，funeral expenses，compensation for death，the amount of which equals“income of future lifetime”of the dead.There is no doubt that the total compensation is larger than that according to inheriting by legislation.

As a result，in terms of compensation amount，the theory of inherent damages is more conducive to the close relatives of the dead than inheriting by legislation.

3.The close relatives are the direct victims rather than the indirect relatives

Some believe that within the theory of inherent damages，there are“direct victims”and“indirect victims”，and the dead are direct victims，and the close relatives of the dead are indirect victims.

We cannot agree with the saying.In fact，there are two victims in the death incident，the dead are direct victims，and the close relatives of the dead suffer the damages of the death indirectly，so they are called as indirect victims.However，in terms of law，the dead cannot get legal remedy;therefore，there is no sense in referring to the dead as the victims.We hold that in terms of law，the dead are not victims.To be brief，there is only one victim of the incident in terms of law，namely the close relatives of the dead，and that’s why they are direct victim.

Ⅳ.The scope of the compensation for damages

1.The right to life cannot be compensated

All types of personal interests cannot be compensated，including the right to life.Encroachment on right to personality or identity can incur the flowing three types of damages:personal interest，property damage and spiritual pain.

The latter two damages are the indirect results of the encroachment on the personal right，which should be compensated.Only in this way can the obligees’rights recover to the state before the encroachment.However，the first type of damages cannot be compensated in that personal interests feature specificity and non-property.Specificity means that the personal interests cannot be transferred，which means that there is no market price of personal interests.Hence，the value of personal interests cannot be measured or figured up by money.

The right to life cannot be compensated.However，it is not because that life is priceless，the right to life is not important，or civil law attaches no importance to the right to life.It sounds satirical that the right to life itself cannot be compensated when it is violated，and one does not need to compensate for the right to life when one violates others’right.However，it is the result of rational analysis.In fact，no compensation for the right to life itself is an established practice inmost countries and regions across the world.

2.The due compensation

In instant death，the inflictor should pay for funeral expenses，spiritual damages and death compensation.

Funeral expenses refer to the fee used in funeral paid by the close relatives of the dead.The amount of funeral expenses depends on the real expenditure of the funeral.It is improper to stipulate a certain amount in law.However，a maximum limit should be set in order to prevent extravagance and waste of the close relatives on purpose.And the amount that is beyond the limit should be borne by the close relatives themselves.We suggest that the six-mouth salary of the dead be the maximum limit of the funeral expenses，which remains open to question.

As for compensation for spiritual damages，we hold that the number of the close relatives might affect the amount of compensation for spiritual damages.The more close relatives the dead has，the more people will suffer spiritual pain.According to the principle of full compensation，the severe spiritual pain of each close relative should be comforted by compensation for spiritual damages.

As for death compensation，we believe that it is the factors which affect the expected income of the dead that decide the amount of death compensation.Therefore，when the dead are juveniles，the court has to treat them equally since their future social status and expected income are still unpredictable，and there should be a sound reason if they are dealt with in different ways.

Notes:

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