On Compensation For Mental Damage

Compensation for mental damage is a hot question that jurisprudential theory circle and judicature circle always concern with, as a method of relief to safeguard right of personality of citizen, legal person or other non legal person organization, it plays more and more important function in realistic life, but due to the characteristics of invisibility of mental damage and it cannot be measured by money, both the determination of mental damage and the calculation of mental damages are in disorder and difficulty in judicial practice. The legislation for compensation for mental damage of our country still exists such drawbacks as limitation of subjects, narrow scope of objects, so it is still necessary to deeply study on compensation for mental damage. This dissertation introduces the historical developing evolution of compensation for mental damage, expounds the concepts of spirit, mental damage and compensation for mental damage. The author holds that the nature of compensation for mental damage is liability for compensation for property with the functions of consolation, compensation and punishment. The constitutive requirements of compensation for mental damage are facts of mental damage, actor's subjective faults and causality. And by using foreign legislations for reference, connecting our national conditions and judicial interpretations, the author expounds the subjects of right and applicable scope of compensation for mental damage. The author holds that subjects of right include natural person and legal person or other non-legal-person organization, its applicable scope includes personal rights and rights of property of natural person, mental interests of legal person and intellectual property of civil subject, meanwhile the author emphatically expounds the questions of compensation for mental damage when right to chastity, right of privacy and right of property of natural person are infringed upon, and holds that breach of contract under some circumstances shall apply to compensation for mental damage. Aiming at the confused situation of the determination of mental damages in judicial practice, the author holds that the principle to determine mental damages shall be doctrine of judger's right of discretion, doctrine of differentiated treatment and doctrine of appropriate limitation, while the specific rules of calculation of compensation for mental damage shall be rule of budgetary estimate, rule of reference and rule of complete compensation. On the basis of this, the dissertation puts forward suggestions on how to perfect the legislation for system of compensation for mental damage of our country, including enlarging subjects of right, broadening applicable extent and so on.