The Dilemma and Solution of the Lack of Compensation Rules of Funeral-rushing Expenses in China's Tort Liability

서지정보

· 발행기관 : 전북대학교 동북아법연구소
· 수록지 정보 : 동북아법연구 / 19권 / 1호 / 87 ~ 118페이지
· 저자명 : 황상한, 왕타오

초록

Rushing back home for a funeral is an integral part of Chinese funeral etiquette. There is no conclusive consensus on whether the expenses incurred by funeral--arrangers should be recognized as a statutory item in death damage compensation. In 2023, China's Compilation of Judicial Interpretations on Infringement (Draft for Commments) groundbreakingly supported the compensation for funeral-rushing expenses. However, the current compensation system for funeral-rushing expenses has defects such as logical inconsistency and normative conflicts, leading to chaos in judicial practice. The root cause of these problems lies in the lack of theoretical research and model exploration of funeral-rushing expenses. They belong to pure economic loss in death damage compensation. Handling funeral affairs is a traditional and good social custom in China, and compensating for funeral-rushing expenses will not trigger the problem of infinite expansion of pure economic losses, so compensation should be allowed. Compared with the narrow-sense funeral expenses that emphasize on focusing on the deceased's remains, funeral-rushing expenses are the prerequisite for taking care of the remains, emphasizing the cost of relatives' participation, and should fall within the category of broad-sense funeral expenses. Referring to the development process of personal death compensation items such as the living expenses for dependents and narrow-sense funeral expenses, funeral-rushing expenses should be incorporated into judicial interpretations and laws on the basis of case-by-case recognition. Extraterritorially, although South Korea and Japan generally recognize reasonable compensation for direct funeral expenses, they have not yet developed an independent regulatory system for economic losses caused by relatives' funeral attendance. In contrast, the construction of the compensation rules for relatives' participation costs by Chinese law has stronger local rationality and institutional foresight. Regarding the basis of the right to claim for funeral-rushing expenses, compared with the subrogation right emphasized in Paragraph 2, Article 1181 of the the Civil Code of the People's Republic of China, funeral-rushing expenses should be included in the “funeral expenses and other expenses” stipulated in Article 1179 of the Civil Code. Due to the strong identity attribute of funeral activities, the subject with the right to claim for funeral-rushing expenses should be limited to the close relatives as defined in Paragraph 2, Article 1045 of the Civil Code. When refining the compensation rules for funeral-rushing expenses, the compensation scope should be limited to transportation costs, accommodation fees, and loss of work income. The catch-all provisions in the second sentence of Article 1181 of the Civil Code should be interpreted as “other reasonable expenses”. For the calculation standard of funeral-rushing expenses compensation, the differential compensation method within a reasonable range should be adopted to improve and unify the judicial application of it.

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