錯誤生命之訴的悖論與要件：澳門地區民法的經驗

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	錯誤生命之訴的悖論與要件：澳門地區民法的經驗
Alternative Title	The Paradoxes and Elements of Wrongful Life Actions: The Experience in Macau Civil Law
	NG KEI KEI
	2023-11
Conference Name	"The 18th Mainland-Taiwan-Hong Kong-Macao Civil Code Forum" (「中國民法典施行的重要問題暨兩岸民法學教學互鑒論壇」)
Conference Date	2023-11-11
Conference Place	Southwest University of Political Science and Law (西南政法大學)
Abstract	本文結合學說與判例，疏理了澳門地區民法上錯誤生命之訴所遭遇的挑戰與解方。具體言之，本文分析了此訴的潛在悖論障礙、主體資格爭論、責任成立要件三方面問題。首先，在潛在理論障礙上，「不存在悖論」與「非同一悖論」使傳統金錢賠償機制失靈，故論證上只能另設例外加以規避，取實質正義而捨形式邏輯。其次，在主體資格爭論上，原告被昔日見解誤認為在行使高度人身性權利，故不能被代理，但此說是推論自冗餘的「不存在權」概念，應被摒棄；被告可否包括父母，極具爭議，雖法條似採否定說，但其適用上疑問甚多。最後，在責任成立要件上：其一，在舉動方面，醫護人員引致責任的舉動形態眾多，但以欠缺告知為典型。其二，在不法性方面，有別於「侵害不存在權說」與「侵害身體完整權說」，「違反健康出生保護義務說」避免了訴諸無法融貫的權利話語，應予採納。其三，在過錯方面，乃採抽象過失標準以「合理醫護人員」為楷模，惟現行法不推定過錯，有反思必要。其四，在損害方面，昔日見解在論證上誤認損害是生命本身、在結論上誤認賠償有悖人性尊嚴，但損害實為不良生活條件，且不予賠償反而才有悖人性尊嚴；在金額衡量上，亦應破除悖論迷思，衡諸非缺陷者楷模定之。其五，在因果關係方面，昔日見解誤以胎兒缺陷為果，否定因果關係，但實應以孩子缺陷出生為果，依間接因果關係理論肯定因果關係，並採「依照告知行事推定」推定孕婦本會墮胎，免卻原告舉證負擔。
Other Abstract	This paper aims to sort out systematically the challenges and solutions of Wrongful Life Action in Macau Civil Law combining doctrines and jurisprudences. Specifically, three topics are examined in the paper, i.e., the possible paradoxes against this action, the dispute over the subject's qualifications for the lawsuit, and the requirements for the liability. Firstly, in terms of the paradoxes, both “the paradox of non-existence” and “the paradox of nonidentity” disable the traditional monetary compensation mechanism, therefore exceptions must be made to evade theses paradoxes when reasoning, so as to choose substantive justice over formal logic. Secondly, in terms of subject's qualifications, according to an antiquated theory, the plaintiff cannot be represented because he is exercising an extremely personal right. However, this theory, which is wrongly derived from the redundant concept of “right not to exist”, should be rejected. It is controversial if parents can be sued. Although the law seems to give a negative answer, there are many doubts about its application. Finally, in terms of the requirements for the liability: first, in terms of conduct, there are many medical conducts that induce the liability, but the lack of information is the typical one. Second, in terms of illegality, different from "the theory of violation against right not to exist" and "the theory of violation against right to physical integrity", the "theory of violation of duty to ensure healthy birth", which avoids resorting to the incoherent “right discourse”, should be adopted. Third, in terms of the culpa, according to the standard of culpa in abstracto, the "reasonable medical personnel” is used as a criterion. However, there is no culpa presumption in the current law. This kind of legislation needs a reflection. Fourth, in terms of damage, according to an antiquated theory, the life itself is held as the damage, and giving compensation is believed to be contrary to human dignity. But both the argument and conclusion of this theory are wrong, because the damage is the living conditions, and rejecting compensation is an indignity instead. The paradoxes should be ignored when fixing the amount of compensation, so as to compare the born with a non-defective person. Fifth, in terms of causality, an antiquated theory wrongly takes the fetal defects as the consequence, denying the causality. However, the consequence should be the birth of the defective child. Therefore, the causality needs to be established via the indirect causality theory, with the help of the “presumption of behavior according to the information” (“Vermutung aufklärungsrichtigen Verhaltens”), presuming that the pregnant woman would have chosen to have abortion, so as to relieve the plaintiff of the burden of proof.
Keyword	錯誤生命之訴澳門民法非同一性問題告知義務醫療事故間接因果關係 Wrongful Life Action Macau Civil Law Nonidentity Problem Duty To Inform Medical Malpractice Indirect Causal Relationship
Indexed By	其他
Funding Project	Research and Publication Project on Jurisprudence / Macau Positive law / Legal History
Document Type	Conference paper
Collection	DEPARTMENT OF MACAO LEGAL STUDIES
Affiliation	1.Department of Macao Legal Studies, Faculty of Law, University of Macau 2.The Institute of Advanced Studies in Humanities and Social Sciences, University of Macau
Recommended Citation GB/T 7714	NG KEI KEI. 錯誤生命之訴的悖論與要件：澳門地區民法的經驗[C], 2023.
APA	NG KEI KEI.(2023). 錯誤生命之訴的悖論與要件：澳門地區民法的經驗. .

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