[details of a case]
Some and Dai Mou second fasten Qi Mou formerly sister brother, parental one's early years dies. 1970, because Dai Mou second commits a crime put in prison, armour of little brother Dai Mou is adopted by Qi Mou's couple, incognito for Qi Mou some. On November 1, 2017, li Mou drives to carry Dai Mou second without car of name brand carry cargo, dash against stops in the one heavy-duty semi-trailer of roadside, dai Mou second dies on the spot. The policeman maintains: Li Mou assumes the main responsibility of the accident, truck driver assumes less important responsibility. Dai Mou second did not marry before one's death parturient, show Qi Mou some is sued, compensation of death of driver of requirement Li Mou, truck and second of Dai Mou of insurance company compensation, funeral expenses, spirit damages the loss such as solatium to add up to more than yuan 490 thousand.
[difference]
A kind of viewpoint thinks, some regards Qi Mou as the close relative of Dai Mou second, for the 2nd ordinal heir, although be adopted by other, but the kin of its and Dai Mou second exists from beginning to end, can sue as compensatory obligee.
Another kind of viewpoint thinks, lacquer is such-and-such one's early years is adopted by Qi Mou's couple, formed factual adoptive relationship to it, the right obligation between its and Dai Mou second concerns to had been eliminated, cannot sue as compensatory obligee.
[review analyse]
Author approve of the 2nd kind of viewpoint, reason is as follows:
Although kin is inherent, not because of adoptive relationship hold water and eliminate, but it is OK to be concerned by the right obligation between consignee and close relative because of legal regulation change. " top people court about trying statute of comfortable use of person damages case the explanation of a certain number of problems " law of liability of the first the 2nd paragraph, tort paragraph and the 18th the first code of civil law the 150th the first () . Be in usually, close relative has authority to regard compensatory obligee as right of acting dead view.
And in this case, lacquer is such-and-such although be the close relative of Dai Mou second, but its one's early years already was adopted by other, formed factual adoptive relationship, according to foster law the 23rd the 2nd " the right obligation between close relative of nursling daughter and etc of strange father and mother concerns, because hold water and be eliminated of adoptive relationship " reach " top people court carries out inheritance act of < People's Republic of China about carrying out > the opinion of a certain number of problems " the 23rd the 2nd " be concerned by the right obligation between consignee and sister of its full brother, because hold water and be eliminated of adoptive relationship, cannot each other is the 2nd ordinal heir " regulation, lacquer is such-and-such because adopt,with Dai Mou the right obligation between second concerns and eliminate, its are sued with the name of close relative of Dai Mou second, main body is unwell case.
If lacquer is such-and-such,can sue as compensatory obligee, criterion he is in have kin one party and plan to make consanguineous relation one party all be put in the likelihood that gets successive benefit, right obligation is not quits, wait for legal regulation to also be not accorded with with foster law, inheritance act at the same time. Reason is such-and-such to lacquer sue, ought to rule do not grant to accept; If already was accepted, rule reject sue.
