| With the rapid development of modern society and increasingly complex interpersonal relations, and infringement and damages compensation show even more complex and changeable characteristics. A violation could lead to multiple injurious consequences, therefore, in the right of damage compensation, the direct victim and the indirect victim (The third person) (Note:hereafter refers to as the third person) began to appear. Speaking of the mental damage, the entire spiritual damage compensation system based on the different victims can be divided into direct victim’s spiritual damage compensation and the third person’s spiritual damage compensation. The so-called the third person’s mental damage is, when the direct victim suffers a infringement and consequences for damage, because a variety of factors (for example the third person and the direct victim has the intimate relation, or the direct victim’s harm makes one too be frightened and so on), the third person also has various spiritual adverse reactions, or receives various forms of mental injury and spiritual attack. Various countries often give the enormous sympathy and protection to the direct victim’s mental damage. However, for a long time, the torts, whether legislative or practice, are relatively neglected and remain cautious for the moral damage to the third person.Certainly, considering of the complexity of social interaction, for the third person’s moral damage, the standpoint which various countries’ tort laws has is not entirely unjustified. After all, each person lives in the society, forms various complex social relations, one tort has the possibility to bring innumerable damage consequences completely. If the perpetrator must assume liability of compensation for all moral damage caused by the violations, it is too harsh for an offender. However, from the perspective of the victim, the third person’s spiritual damage is real and determined. Although between this harm consequence and infringement of the perpetrator merely is an indirect causality, but if not the perpetrator’s tort, the third person’s spirit harm completely has the possibility to avoid. If only because its damage reason is "indirect" then to deny its compensation, it may not be inconsistent with the concepts of fairness and justice of the tort law. Therefore, the law must make a benefit choice and balance in protecting the inflicter or victim. And the tort law can do is:delimit the third person’s scope reasonably, prevent the too broad harm concept and cause the spiritual damage compensation stop each person that should be prevented.To construct this kind of the legal regime for the third person’s spiritual damage compensation in the tort law is certainly difficult and arduous. Although other country has some related legal rules to use for reference, but the national condition difference and the moral ethics view’s difference possibly cause the path which uses for reference to be not necessarily smooth. But as Mr. Wang Zejian statement, the law of silence is not the end of the problem, but the appearance of the questions, is also the beginning of legal thinking and creationary activities. What this article can do is, by studying theory foundation and threshold analysis of the third person’s spirit damage compensation, to build and improve our country’s legal system of the third person’s spirit damage compensation.This article is divided four chapters, the author first carries out a legal definition about the third person’s spirit damage compensation and then describes the theoretical basis of the third person’s spirit damage compensation. Third, the author conducts the type and normative analysis of the third person’s spirit damage compensation. Finally, the author proposes that should construct and consummate our country’s the legal regime of the third person’s spirit damage compensation by reviewing the legislation and judicial practice of the third person’s spirit damage compensation in our country.Specifically speaking:In this paper, the "Introduction" section includes three subsections:First, the questions’derivation; Second, the significance and situation of research; Third, research methods and semantic description. In this part the author briefly introduces some of the major reasons and motivation for writing this article, elaborates the present research significance, situation as well as research methods of the third person’s spiritual damage compensation, and compares and explains some more chaotic, approximate, or the related basic terminology on the practice.Chapter 1 is titled as "the legal definition on the third person’s spiritual damage compensation", the author mainly analyzes the third person’s spiritual damage compensation in concept, nature, characteristic as well as legal relationship. And points out:the third person’s spiritual damage compensation includes but not limited to the third person’s spiritual damage compensation in nervous shock as well as the direct victim’s close relative’s spiritual damage compensation in China’s current law. From the meaning, it is part of a broad sense of the third person’ damages, but it is completely different for the narrow sense of the third person’s damages. The cause of the accident for the third person’s spiritual damage has many kinds, such as the shock cases, or direct victim died or became handicapped in an infringement and so on. Some people think that the third person’s mental damage belongs to a direct injury, but others think that it is indirect, reflective damage. The reason to differentiate its legal nature for scholars is one traditional theory in tort laws, namely the direct damage can be given the compensation, but the remote damages do not be compensated in principle. But the author believes that in China’s Tort Law classification standard on direct damage or indirect damage is vague, so the habitual thinking and practices for the indirect damages do not be compensated based on this classification standard is certainly dubious. Moreover, the damage of indirect victims is not the same as indirect damage, so on the practice, it is not completely great necessity to make a division of direct or indirect damage on the third person’s moral damage. If must make the division theoretically, might as well from causality between the behavior and harm, define the third person’s spiritual damage as the indirect damage or the reflective harm. On the characteristics, the third person’s moral damage shows some dependence and the relative independence on the direct damage. And for the object suffering violation, the direct victim and the third person show some non-identity. Then the third person’s spiritual damage compensation displays some characteristics:such as independence in the lawsuit protection, complexity in responsibility elements, strictness in the compensation application as well as the difference in the relief result. The third person’s spiritual damage is "one cause—multi fruit", therefore there is a multiple legal relationships in the compensation for the inflicter and direct victim as well as inflicter and indirect victim. Then the concrete component elements in this multiple legal relationships certainly are not completely consistent. In addition, in the theory basis of the third person’s spirit damage compensation, the author analyzes the validity of the third person’s spirit damage compensation from the economic, sociological and the law philosophy angle and draws the following conclusion:at least, constructing certain types of the third person’s spirit damage compensation is feasible and just in our country’s law system.Chapter 2 is titled as "the theoretical basis on the third person’s spiritual damage compensation", the author mainly from the economic, sociological and the law philosophy angle analyzes validity question of the third person’s spirit damage compensation. First, the author describes the economical analytics viewpoint on the tort liability, and points out:from the economic angle in pursuing income maximization and cost minimization, at least establishing some of the legal type of the third person’s spiritual damage compensation is in line with the economic viewpoint. Secondly, the author analyzes the social restrictive factor of the third person’s spirit damage compensation and respectively has a criticalness analysis from the surface layer technology reason and in-depth society reason aspect to these social restrictive factor. Finally, the author studies the goal value system of tort law from the law philosophy angle and points out, when each kind of value goal of the law has the conflict, we must carry on the value conformity, and the general principle on the law’s value conformity is to reconcile these goals and balance law profit as well as maintain law stability. For the modern tort law, the behavior freedom and right protection, social efficiency and social justice must be balanced, but it should give top priority to protect the rights of the victims. However, the traditional tort law principles (such as remote damages do not give compensation in principle) can not completely abandon, and maintaining the stability of the existing tort law system should not be overlooked. So on the one hand, we must echo the relief request of the third preson in the law, but on the other hand, this kind of problem must be carefully planned and designed to avoid excessive increase of liabilities of the infringer. In short, the author concludes after analysis:at least to construct some certain types of the third person’s spirit damage compensation is legally feasible and just.Chapter 3 is titled as "the type and normative analysis on the third person’s spiritual damage compensation". First, the author analyzes the theoretical type of the third person’s spiritual damage compensation. Second, the author analyzes the legal type of the third person’s spiritual damage compensation, and compares the legal type of the third person’s spiritual damage compensation in the common law system and civil law system, European Union as well as Taiwan of China, then the author puts forward a proposal for our country’s council type on the third person’s spiritual damage compensation by profiting from the theory classification and other national legal classification. The classified standard is as follows:1. from the initiation reason, only the third person’s spiritual damage compensation caused by an infringement but not breaches a contract (moreover violating the personal rights, not property rights of the direct victim) can request the legal relief.2. from the subject of rights, only when the indirect victim having the status legal relationship and the sentimental intimate relation with the direct victim can request the spirit damage compensation.3. from the harm consequence, only the indirect victim with severity energetic harm can request the lawsuit for money compensation. And the legislation type includes following five kinds:the third person’s spiritual damage compensation caused by violating the direct victim’s the right of life, healthy, freedom, spouse as well as the dead’s personality benefit. Finally, the author makes the normative analysis on the above five third person’s spiritual damage compensation, and limites the third person’s scope, the compensation condition as well as the compensation scope.Chapter 4 is titled as "our country’s legal regime research on the third person’s spiritual damage compensation". The author first carefully arranges our country’s legislation and judicial practice for the third person’s spiritual damages compensation including some stipulations and cases, and makes targeted analysis. On the legislative provisions, the author lists the provisions about compensation for the third person’s moral damage in the civil field, economic field, the administrative domain as well as the criminal domain. And also elaborates some stipulations of present five tort law draft about the third person’s spiritual damage compensation in our country. On the judicial practice, the author mainly lists some typical cases on the third person’s spiritual damage compensation, Such as in shock cases, by violating the direct victim’s life or health as well as identity and so on. Next, the author gives advice to constructed and perfect our country’s legal regime for the third person’s spiritual damage compensation. For instance, in the application of principle, should insist on an appropriate open, strict control and should stress primarily appeasement as well as decrease progressively in turn. In the applicable scope, should expand the subject of the right and the object suffering infringement for the third person’s spiritual damage compensation. In the elements of responsibility, should stipulate the general elements and special elements for the third person’s spiritual damage compensation. In the legal design, should choose a legislative mode or style and design legal provision of tort law for the third person’s spiritual damage compensation.Through the above-mentioned analysis of the various chapters, the author draws the following conclusions:the third person’s spiritual damage, although compares with the direct victim’s damage, is away from perpetrators’ violations to be more remote. However, in the face of modern society increasingly frequent incidents of damage, completely refusing its compensation is not consistent with social fairness and justice, but also may undermine the authority of law. For the third person’s moral damage, what the law needs to do is to design a good system and legal type and divide reasonably the scope of the third person thus to truly prevent the damage compensation for those people should be prevented. Modern States’ tort laws can not blindly and arbitrarily refuse the purely economic losses’ compensation even if they are away from reason of damage more remote, let alone the third person’s spiritual damage compensation. Therefore, in this sense, on the one hand, some types of the third person’s moral damage compensation are necessary and justified. On the other hand, it is also feasible to construct our country’s some types of the third person’s compensation for moral damage in the legal system. |
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