死者人格與遺族情感保護之研究──以「敬愛追慕感情之法益」具體化為中心

Abstract

人死亡後，其生前之人格特徵，例如姓名、肖像、隱私、名譽……等，仍可能遭他人侵害或利用，死者遺族亦可能因此受有情感痛苦。此時，死者人格有無保護必要？民事法律關係應如何處理？不無深究之必要。對此，各國或透過國會立法、或透過司法實務，建立死者人格之保護體系，相形之下，我國民法既未設有規範，實務目前亦尚屬發展階段。關於死者人格保護模式，向有直接保護與間接保護兩種途徑，本文將介紹並比較德國、日本、中國及我國的學說、實務之發展，並重新思考死者人格之保護必要性。本文認為，死者既已非權利主體，無從開展法律關係，對死者人格保護之議題即應聚焦在遺族情感──「對死者之敬愛追慕感情」法益的具體化，且該法益並非作為間接保護死者人格的工具，而係保護遺族本身。 關於遺族「對死者之敬愛追慕感情」法益，我國及日本見解將其定性為一般人格法益。惟本文認為，此情感係基於與死者之身分關係所產生，性質上為身分法益，應以民法第195條第3項為創設依據，且其保護主體範圍應限於父母、子女及配偶，較為妥適。再者，除侵害死者生前之人格外，實務上亦常發生毀損死者遺體、遺失骨灰、發掘墳墓…‥等案例，上開行為亦可能作為侵害遺族對死者敬愛追慕感情之手段。職是，本文嘗試剖析「遺族情感」之內涵、性質、正當性基礎、救濟手段及侵害類型，提供實務將來處理涉及死者人格侵害、毀損屍體或遺失骨灰……等案例之參考，俾周延相關民事責任之保護體系。

After a person dies, his personal characteristics while alive, such as name, portrait, privacy, and reputation could still be infringed or used by others, and thus, the survivors could possibly suffer from emotional distress as well. In the meantime, the necessity of protecting the personality of the deceased and how the civil legal relations should be dealt with are worthy of studying. To deal with this, either through legislation of parliament or through jurisdictional practices, countries establish the system of protecting the personality of the deceased. Under comparison, there are no relative norms in our civil code while our legal practice is still under development. Concerning the mode of protecting the personality of the deceased, there have been two approaches, direct and indirect protection. This thesis will introduce and compare the development of academy and legal practice of German, Japan, China and our country and reconsider the necessity of protecting the personality of the deceased. As far as this thesis is concerned, since the deceased are no longer subjects of right, there are no ways for them to develop legal relations. Therefore, the issues of protecting the personality of the deceased should focus on the emotions of the survivors, that is, the concretization of the legal interest in cherishing the memory of the deceased, and instead of a tool of indirectly protecting the personality of the deceased, that legal interest protects the survivors themselves. Concerning the legal interest of the survivors in cherishing the memory of the deceased, it is thought of as a general personal legal interest in our country and Japan. However, as far as this thesis is concerned, this emotion arises from the family relation between the survivors and the deceased and is characterized as a family legal interest, so it should find its basis in Article 195 Section 3 of Civil Code and the subjects of protection should be confined to parents, children and spouse. Moreover, in addition to the infringement of the personality of the deceased while alive, cases of damaging human remains, losing bone ash and digging tombs could take place in legal practice. These behaviors could be considered as methods of infringing the legal interest of the survivors in cherishing the memory of the deceased. Therefore, this thesis tries to analyze the content, nature, basis of justification, remedial methods and categories of infringement of “survivors’ emotions”, and provide legal practice with references in dealing with the cases mentioned above in the future to complete the protecting system of relating civil liability.