Mental Injury Compensation System

The rule or compensation for mental distress is an important part of the rule ot compensation for injuries in modem civil law. This thesis aims to make a tentative study on some issues regarding compensation for mental distress.Chapter 1, Conspectus of Mental Distress. Through the discussion on the two doctrines of both approval of and disapproval of compensation for mental distress, this chapter elucidated that the theoretic ground of compensation for mental distress is that it bears the function of compensating, soothing the person aggrieved, and punishing the inflicter as well. Also, this chapter makes a comparative study on the compensation rules for mental distress of Germany, Switzerland, France, and Japan in view of legislation. The author suggests that our country shall use the experience of Switzerland and Germany on compensation for mental distress for reference while formulating our civil code, to adopt the legislation system that consists of both enumeration and generalization.Chapter 2, Mental Distress. This chapter discriminated the concepts of "injury" and "loss", and discussed three doctrines on concept of injury. Based on this, this chapter talked about the concept, the nature of mental distress and the relationship between mental distress and personality injury, mental distress and non-property damage. While tentatively clarifying mental distress, this chapter made a primary research on the issues of compensation for various kinds of mental distress.Chapter 3, Determination of Liability of Compensation for Mental Distress. This chapter discussed the evolution of the principle of fault liability and the process of the birth, the development and the establishment of rule of compensation for mental distress, expatiated on the theoretic basis of that the principle of fault liability is treated as the basic principle of criterion of liability for compensating mental distress, and the limitations of using "rule of fault presumption" to determine the compensation for mental distress. After studying foreign countries' (region's) attitudes on determining the compensation liability for mental distress in the case of no fault exists, the author advocates to apply with solely the principle of fault liability in the case of mental personality right is injured, and to apply with both the principle of fault liability and of non-fault liability in the case of property personality right is damaged.Chapter 4, Scope of Compensation for Mental Distress. This chapter discussed the basic theory on determining the scope of compensation for mental distress, and made comments on the doctrines on the issue. From the angle of protecting personality right, this chapter gave its standpoint on the scope of compensation for mental distress. The author advocates that: citizen of our country ha? the right to ripply for compensation for mental distress as his personality right is illegally injured. The personality rights said above shall include right of life, health, person, dignity, freedom, reputation, privacy, name, portrait, honor, and the right of self-determination on marriage. While discussing relevant personality rights, this chapter also studied other issues such as the inheritable nature of solatium, and the protection to carcass.Chapter 5, Specific Issues of Compensation for Mental Distress. This chapter discussed emphatically the compensation for mental distress of legal person, person who has no sense of distress, dead, and embryo. The author's opinion is: legal person and the dead shall not become the subject applying; for compensation for mental distress; person who has not subjective feeling on distress has the right ofapplying for compensation for mental distress; embryo has no capacity for rights, so he can not apply for compensation for mental distress. But, person who had been illegally injured when he is an embryo and had incurred personal injury has the right to apply for compensation for the damages as well as mental distress.Chapter 6, Calculation and Determination of Solatium for Ment...