論寵物受侵害時，飼主之慰撫金請求權

Abstract

現今我國社會有許多人飼養動物作為日常生活陪伴，為該動物如同對待「自己子女、親人或伴侶」付出一定的時間、精力與成本，此類陪伴動物因此又稱為寵物。雖然通說認為動物之法律地位係「作為動產之物」，但應否變動之討論亦已崛起，而外國法上「動物非物」、「介於物與人之間的獨立生命體」、「生命體財產」以及「人格物」等定位，即可供我國參考。 當寵物遭受他人侵害，許多飼主會因此感受精神痛苦，然飼主得否主張非財產上損害賠償，則有爭論，本文檢索我國實務裁判，發現法院對此判斷非屬一致。過去多數法院持否定說，但自民國91年起出現第一則「准許飼主就寵物受害請求慰撫金」之裁判後，開始出現少數肯認飼主與寵物間之密切情感關係應受保護之裁判。 因此，本文探討了民法第195條第1項的健康權、驚嚇損害事件、其他人格法益，以及同條第3項之身分關係法益之內涵與適用，認為飼主與寵物間確實存有應受保護之情感利益，而得請求非財產上損害賠償。其他實務見解上，普遍傾向於「允許飼主就寵物受害請求慰撫金」的國家，如美國和日本，其寵物之法律地位亦係作為物之財產，故本文認為不論是否修法變動寵物法律地位，飼主均應得請求慰撫金；但未來我國仍可修法明文改變寵物之法律地位，或增訂非財產上損害賠償責任之準用條款，以杜爭議。

Nowadays, many people keep animals as companions, and spend an amount of time, energy, and cost on the animals as if they were their own children, relatives, or partners. Therefore, such companion animals are also called pets. Although it is generally believed that the legal status of animals is "personal property", the discussion on whether it should be changed has risen. The status of "animals are not things", "independent living animals between property and human", "living property" and "personhood property" in foreign country can be used as a reference for Taiwan( R.O.C.). When pets are violated by the others, many owners would suffer emotional distress. However, whether the owners could claim compensation for non-pecuniary loss as if pets are violated is controversial. In this paper, through the search of judgments in our country, it was found that the judgments of the courts on the owners' claimed monetary compensation were not consistent. In the past, most courts held negative opinions, but since the first judgment in 2002 that allowed owner to request monetary compensation for violation of pets, there have been a few judgments affirmed that the close emotional relationship between owners and pets should be protected. Therefore, this paper discussed the connotation and application of health right, nervous shock, and other personality in Item 1 of Article 195 of the Civil Law, as well as the interest of the relationship in Item 3 of the same article. This paper hold that there is indeed a kind of emotional relationship between the owner and the pet that should be protected. And if a person wrongfully damaged this kind of emotional interests, the owner could claim compensation for non-pecuniary damages. In the United States and Japan, courts generally tend to "allow owners claim monetary compensation for violation of pets". The legal status of their pets is also personal property. Consequently, this paper holds that regardless of whether the law is amended to change the legal status of pets, owners could claim monetary compensation for emotional distress in case of injuries to pets. In the future, our legislators could amend the law to change the legal status of pets, or add apply mutatis mutandis clause to stop dispute.