A Discussion On The Compensation For The Spiritual Injury In The Personal Damnification

The spiritual injury, a kind of non-material damage, is the psychological damnification that results from the infringer trespasses the victim's personal right and personality right. The spiritual injury in the personal damnification refers to that the victim goes through the body pains, spiritual torture, living enjoyment loss, life shrink, the relative's death and so on, because his life right, his heath right and/or his body right are infringed. Chinese Civil Law Legislation world has changed their attitude from negative to positive for whether the spiritual injury should be compensated. How to determine the amount of the compensation is a realistic problem needs to be solved in the juridical practice.The responsibility of the spiritual injury compensation in the personal damnification consists of four factors: the infraction action, the damage fact, the causality between the infraction action and the damage fact, the infringer's trespass. The scope of the compensation includes the life right, the heath right and the body right of a natural person. How to determine the subject position of the fetus, the vegetable person and the disable person is discussed in this paper theoretically. This is a big problem in the executive world to determine the amount of the compensation, because the spiritual injury is imperceptible and immeasurable. Though there is no equivalent relation between the injury and thecompensation, the function of soothing and punishment of the compensation cannot be denied, and it is an effective means of almsgiving. At present, the compensation amount in China is too low, and it should be increased. Besides, it is not suitable to have the uppermost limit of the compensation, because the society develops so quickly; the lowest limit is necessary, because the infringer can't make up the victim's loss by taking some other civil responsibility. How to determine the compensation above the lowest limit depends on the free measurement of the judge, so the free measurement of a judge should be regulated. Whereas Chinese laws and regulations related with the spiritual injury compensation are uncompleted and sometimes contradictory, the author suggests to establish the tort law in China as soon as possible and legislate the spiritual injury compensation.