First, does the violation of physical rights necessarily violate the right to health?
Not necessarily. The right to body emphasizes the integrity and freedom of the body, while the right to health emphasizes the normal operation of physiological functions, which include internal functions and external organizations. Therefore, the violation of the right to health will inevitably cause damage to the victim's internal function or external organization, but the violation of the body right is not necessarily. Therefore, in order to distinguish between disputes over body rights and disputes over health rights, we should first look at whether the internal function or external organization of the victim has been infringed, and determine the right to health if it has been infringed, and the right to body if it has not been infringed.
For example, it is also a slap in the face. If it causes the victim's tooth loss or tinnitus or is in an unhealthy state such as fear and shock, it belongs to the right to health dispute; If these consequences are not caused, it is just a slap in the face, which is a dispute over power.
For another example, throwing sulfuric acid on other people's faces will destroy other people's facial tissues and constitute a violation of the right to health; However, throwing dirty water on someone's face usually does not cause tissue damage to the victim, which constitutes a violation of body rights.
Secondly, infringement of body rights is sometimes combined with infringement of privacy and reputation rights. For example, illegally searching another person's body violates the victim's right to body and his right to privacy. For another example, the supermarket staff searched the customer's body, which violated the victim's right of body and privacy, and also violated his right of reputation. However, the violation of the right to health is generally not combined with other personality rights.
Article 103: Natural persons have the right to the body. The personal safety and freedom of movement of natural persons are protected by law. No organization or individual may infringe upon the body rights of others.
Article 104: Natural persons have the right to health. The physical and mental health of natural persons is protected by law. No organization or individual may infringe upon the health rights of others.
Second, the way to violate the right to the body.
1, harm to the body.
If a natural person loses his civil rights after his death, the corpse shall be protected according to law. However, during autopsy, some doctors and forensic doctors will take tissues or organs (such as hair, teeth, patella, pubic bone, sternum, etc.). ) accumulate information for scientific research or teaching. In order to reach a certain sample size, there are often hundreds of such tissues or organs. Although these acts are beneficial to the development of medicine and forensic medicine, in most cases, these acts do not obtain the consent of the family members of the deceased, so they also constitute a violation of the right to the body. Another example is to transplant organs from condemned prisoners to patients. However, in some places, prisoners' families were not really consulted. There is no doubt that this also constitutes a violation of the right to the body.
2. Illegally retaining and holding human tissues.
The body right of citizens takes the body as the object, and the most important thing is to maintain its integrity and integrity. Therefore, anyone (including medical workers) who destroys citizens' physical integrity without citizens' permission constitutes a violation of personal rights.
3. Painless damage to body tissues.
It is generally believed that damage to body tissues, as long as it does not cause serious pain, is not considered as an infringement of the right to health, but that its behavior constitutes an infringement on the body. Body right and health right are closely related, but their contents are different. Body rights protect the integrity of limbs, organs and other tissues; The right to health protects the sound functions of various organs and the whole body.
4. Perform excessive surgery.
The job of a surgeon is to exchange the patient's life and health for a small price. The vast majority of doctors practice medicine with lofty and fair goals, but there are exceptions. However, if a doctor invades the patient's body because the patient is not suitable for the method of operation or the purpose of treatment, it is an invasion of the body and the cause of damage.
3. What are the ways to bear tort liability?
1, stop the infringement
When the infringement committed by the infringer is still in a continuous state, the victim may request the court to order the infringer to stop infringing on personal rights or property rights according to law. This is a basic form of tort civil liability. Stopping the infringement can stop the infringement in time and prevent the consequences from expanding. If the infringement has not been implemented or has been completed, this form of liability is not applicable. Where there are other special provisions in the relevant intellectual property laws, those provisions shall prevail.
Step 2 remove obstacles
When the infringer's infringement makes the victim's property rights and personal rights unable to be exercised normally, the victim has the right to request the removal of obstacles. This obstacle should be real first, for example, when building a house, it violates the plan and affects the lighting of others. The victim has the right to ask the infringer to remove obstacles. This kind of tort liability does not apply to the obstruction that may cause danger to personal and property rights, but to the tort liability that excludes danger. Secondly, nuisance behavior should be illegal, that is, it should be illegal if it constitutes a nuisance to personal rights and property rights. If it is a legal act, it has no right to ask for the exclusion of obstacles. If the public security organ monitors the residential criminal suspect according to law, the person under surveillance has no right to ask for the removal of obstacles.
Step 3 eliminate danger
When the behavior of the actor poses a threat to the personal and property safety of others, or there is a danger of causing personal and property damage to others, the person in danger has the right to ask the actor to take measures to eliminate the danger. Because the consequences of infringement have not appeared, it should be said that eliminating danger is not a strict sense of tort liability, but eliminating danger can prevent the occurrence of factual damage in advance, which is more significant than claiming compensation after the damage occurs. For many damages, after-the-fact remedies can't make up for the losses, such as personal injury and disability, and the consequences are irreversible, and no compensation can help the victims recover. In view of the fact that although the danger has not caused actual damage to others, if the danger is left unchecked, it will inevitably lead to damage, and the dangerous person has the right to request the elimination of the danger. For example, the billboard set by A is about to fall down, posing a threat to the personal safety of pedestrians. Pedestrians can ask a to repair it to eliminate the danger.
4. Return of property
When the infringer takes other people's property for himself without legal basis, the victim has the right to demand its return. The return of property is the form of recourse. According to the theory of civil law, no matter who surrenders the subject matter of real right, the owner can ask the owner to return it. The applicable conditions for the return of property include:
(1) Only illegally occupied property can be demanded to be returned. For example, Party A gave Party B a TV set as a pledge loan, but after returning the loan, Party B refused to return the TV set, and Party A has the right to ask Party B to return it. If it is legally occupied property, the possessor may refuse to return it on the basis of his legal reasons. It is worth noting that for the bona fide acquirer, the original owner can't ask for the return of the property. For example, the TV set pledged by Party A to Party B was sold to Party C at the market price, and Party C did not know that Party B had no ownership of the TV set. In this case, Party A has no right to ask Party C to return the TV set, because Party C is a bona fide purchaser and there is no subjective fault, so Party A can only ask Party B to compensate for the loss.
(2) The property required to be returned should exist objectively. If the original property has been lost and cannot be returned, the owner can only claim compensation for the loss according to law.
(3) The property required to be returned shall generally contain fruits.
Step 5 return to the original state
Restitution means that another person's property is damaged or its form has changed because of infringement, and the victim has the right to ask the offender to repair the damaged property or take other measures to restore it to its original state. If Party A reconstructs Party B's house during the lease period, Party B has the right to request Party A to restore the house to its original state. Restoration should meet the following two conditions: First, the damaged property may be restored to its original state. If the property has been lost or damaged beyond repair, it cannot be claimed to be restored to its original state, but only to compensate for the losses. Second, damaged property must be restored. Damaged property may be restored, but it is no longer needed after restoration, and the infringer may be required to pay compensation at a discount instead of restoring it to its original state. Generally speaking, if damaged property can be restored to its original state, it should be restored to its original state as much as possible; Only when it is difficult to recover, do you ask for compensation. The cost of restitution shall be borne by the offender.
6. Compensation for losses
If the infringer causes property or personal injury to others, he shall make compensation. The so-called compensation is to make up for the losses suffered by the victims in the form of money. Generally speaking, it includes property loss compensation, personal injury compensation and mental injury compensation. The life safety and dignity of natural persons are protected by law. No organization or individual may infringe upon the right to life of others.