Compensation For Mental Loss

The compensation of psychiatric damages system is accompanied by the "German Civil Code".In the 20 century,the compensation of psychiatric damages system has undergone a process of continuous development in the world. Professor Liang Huixing,a famous jurist advanced the spirit of civil law of damages in its "on tort law" paper in 1981. On March 10 of 2001, the implementation of the "Supreme Court on the spirit of civil tort liability for damages of several explanations" on the issue of compensation for moral damage made more comprehensive provisions.On July 1st,2010 into effect of the Tort Liability Act is the first clear spirit of the existing law of damages:"infringement of personal rights and interests, resulting in severe mental harm to others has been infringed may request compensation for moral damage."The rule of compensation distress is an important part of the rule of compensation for injuries in modern civil law.So it's important to make a tentative study on the rule of compensation for injuries.By employing a comparative study,this paper firstly expounds the concepts of damage and mental damage.The damage should content mental damage in our country in the paper,and discuss the stand ground of the compensation for mental distress,as the basis of the below-depth reseach on the rule of compensation for mental distress.the basis can be summarized as follows:One is to play a soothing effect on the victims, to a certain extent, reducing the suffering of the victims. The second offender is to play the role of sanctions. The third is the spirit of interest can be translated into material benefits.Secondly,it introduces legislation and practice of the two legal systems on the mental compensation. The German civil law says that because of intentional or negligent, unlawful infringement of the body, life, health, liberty, reputation or other harm to the interests of another character, shall be liable for damages. Personality right infringement, for non-property damage, may request to use a considerable amount of money to compensate the damage suffered by the victim, restitution can be used as a way of compensation, or have used the money to the victims methods other than compensates, and to no longer apply. No longer considered a minor infringement, the compensation money shall be in accordance with specific circumstances, in particular, should be in accordance with the degree of abuse and negligence cases decided. When visitors travel compromised the right to rest, the right holder may request compensation for moral damage. In addition, Germany is also in some special law provides for compensation for moral damage. French civil law is widely recognized moral damage compensation. French theorists of moral damage compensation in money if there should be differences.Swiss Civil Code expressly excludes the right to life and health of the spirit against damages. Switzerland and the German Civil Code is similar to the infringement of property rights are excluded from the solatium claim. Japan's Civil Code,basically followed the German legislation, with modifications made by the Japanese national conditions clearly increase the reputation and property rights can be used as the object of moral damage Practices Act. Japanese scholars are now the damage to property other than generally referred to as moral damages. Case law in the Anglo-American countries, the spirit of the extent of the damage about the following:(1) pain and suffering; (2) mental shock; (3) loss of enjoyment of life; (4) reduce the loss of life; (5) bereavement. The amount of moral damage in the evaluation criteria, the common law approach is based on the spirit of the uniform application of the criteria to evaluate the damage and calculate the amount of compensation is not uniform, so the judges have great discretion. The amount of compensation is calculated, the United Kingdom using classification approach, using estimates for the U.S. law. In trial practice, the United Kingdom case law recognized in many mental damage compensation for the illegal detention, physical assault, degrading, defamation and other violations arising from the process of moral damages, damages to the victim should be given to the victims in people to compensate. In this respect, the United States and the United Kingdom is different from the offender intentionally caused the victim identified as a pure spirit of tort damages.Thirdly,it attaches great importance to discuss the scope of compensation for mental distress.there are several theories:First, the basis of personal injury and property damage; second,a major fault and crime;third, a range of personality rights;Fourth, mental anguish; Fifth, personality rights. In China, Professor Wang Liming, represented by scholars after the long-term damage to the spirit of the study recognized the doctrine of separate use of any of the above has its shortcomings. The latest implementation of the Tort Liability Act, Article 22 limited to damages against the personal rights and interests, and against the infringement of personal rights but does not include property rights. However I believe that, in exceptional circumstances, the violation of property rights or moral damage compensation should apply. And I believe that serious should be understood as only the following five conditions:First, the victim suffered harm because of their personal rights and interests, leading to strong stimulation of the spirit, and ultimately suffering from mental diseases; the second, traumatized victims, the great depression, grief, spiritual trance, affecting the normal work, study and life can not be normal or even work, study and life, or return of suicidal thoughts and other circumstances;the third, the occasion against the person against the victim open and wide-ranging, affecting large; the fourth, the victim is the public figure, the public's attention to its relatively high; the fifth, in line with the perspective of protection of minors, for failure to infringement of personal rights and interests of adults identified as directly causing serious mental harm.Damages for breach of contract and spirit on the relationship between the theorists and Germany are not in favor of legislation has been the case for breach of contract claim compensation for moral damage, only in the non-property damage in the case of commercial fishes to protect it. This practice mainly in the service contract. the general view now of France is in the event of default could be argued that the spirit of damages. and now the UK's view is that, in principle, are allowed under any circumstances request compensation for moral damage and limited only by the general theory of constraints principles. American theorists and legislative point of view is consistent with the situation in Germany, but in exceptional circumstances or for breach of contract in case of moral damage compensation. Breach of civil law theorists on whether to request compensation for moral damage there are three different views. The first view is that, under normal circumstances do not allow the request in the spirit of breach of contract damages in the complaint, but the breach of contract and tort liability in the case of competing and some concepts can be expected under normal non-property damage is apt to cause a particular type of contract occurs, the spirit can allow the request for damages, but the second needs a specific definition of the legislative and judicial practice, to be determined. The second point of view, breach of contract damages can only request compensation for property damage, but can not request compensation for moral damage. Because tort law and contract law, whether in purpose or in the form and effect of law is a huge difference. The third view is that some of the moral damage caused by the breach may request compensation for moral damage. China's scholars to hold the second view of the majority. Author in the event of default of the spirit of the question of damages held a negative attitude on the ground mainly in the following aspects:First, the general tort offender is at fault for the constituent elements, but not in breach offender's fault the constituent elements, then the application of law will result in confusion and discord. Secondly, breach of contract has occurred in the pre-contractual relationship between the parties, tort liability usually occurs between strangers, the contract between them to maintain a specific contact relations between them according to the principles of contract law rights and obligations under all the wishes of both parties according to their own consultations, there is no compulsion possible, but most of the contracts have been liquidated damages provided for such penalties, if the hard damages to the spirit of the terms of the provisions in the contract, that is, the spirit of the victim based on assumptions based on the extent of the damage, while the original purpose of tort liability is based on the infringement has actually occurred based on.Finally,it analyzes the practice of mental distress,and focuses on the legal person, the dead fetus,victims and indirect victims of criminal damage to the spirit of the problem.China's current legal theory of damages the spirit of legal problems still exist different points of view, mainly agreed with the spirit of legal person may become subject and the object of their damages as compensation for moral damage the main two points of view. This paper argues that it can be a legal right to compensation for moral damages subject to sub-specific situation. When the authorities the legal representative of the State to exercise functions and powers of the time, there is no spiritual harm. When it is necessary for the exercise of authority when engaged in civil activities that may damage the spirit of the problem. Legal institutions and juridical association can be a spiritual body damages.For the spirit of the deceased requested the views of damages that are divided into positive and negative view. Only a few scholars claim the positive view.Most scholars hold that the other kind of view. This paper argues that the spirit of the deceased can not be the subject of damages. Because the interests and personality of the deceased bodies of the dead, ashes, etc. against a near relative of the deceased would have caused great mental pain. So violation of the interests of the deceased's personality and the dead bodies, ashes and other close relatives of personality is in fact the interests of its violations.On how to protect the interests of the fetus under different legislative example, one live birth to the baby as a precondition to recognize the fetus has the capacity for civil rights. Second, civil rights do not recognize the ability of the fetus, but in the interests of the fetus as it has been born to be protected. Third, the fetus does not recognize the capacity for civil rights, while protecting the interests of the fetus is not deemed to have been born, just to provide for individual issues, in order to protect the interests of the fetus. I think that in our country there is not the fetus itself, the spirit of the question of damages, but after the birth of their birth before the consequences of the damage claims of the right to claim. In addition, the exclusion of British and American case law has been the spirit of children born to parents the right to damages. China should also adopt the practice of common law, does not recognize the children of parents the idea of tort damages.Victim of legislation lacks the spirit of the victims of criminal damage and the spirit of protection of the right to damages. I believe that the need in the relevant substantive law and procedural law provisions and adjustments made accordingly. In the purely spiritual harm to an issue, the civil law countries reflect three different views. First, the strict moral damage compensation system. German law is the system adopted. Germany's point of view is third person mental injury in the third person must be a case of a close relative of the victim directly, but also the spirit of close relatives, the loss suffered must be actually caused the damage to body or health. German law is characterized by the spirit of the third person does not take into account the damage and causal link between the infringement, into the third direct victims to be protected. Second, close relatives and have real feelings of the people purely mental injury compensation system. France, Spain, Belgium and other countries adopted this system admits the existence of purely spiritual damages, and damages for pure mental scope of the claimant than the provisions of German law has expanded, not limited to close relatives, but also for on the damage to the victim have real feelings and really feel the pain of the people, are purely mental damages in the claimant list. And the pain does not need to create a pathological degree, as long as grief can be. But not limited to the main claim in the legal marriage spouses, parents and children, if it is the fact that marriage, as long as the third person and the victim can prove emotional and the third between the direct result of damage suffered by the victim feel grief on it. Third, close relatives, purely mental injury compensation system. Greece, Portugal and other countries adopted the system of compensation for moral damage is purely positive attitude. The narrow scope of claims, just admit the victim's close relatives have a direct moral damage compensation claims. In common law countries, the United Kingdom on the Indirect damages the spirit of the victim requests the following conditions:one is the victim directly between the plaintiff and must be reliable and sufficiently close relationships, including the relationship between parents and children, spouse relationships. This condition is an exception to the principle of common law in the rescue. Second, the plaintiff must be a person in the field or in the vicinity witnessed the accident, and began to face the consequences. Third, the plaintiff must be seen or heard infringed because of the accident which led to the spirit of the damage, the damage must be identified and the medical diagnosis of mental illness or mental disorder. And this burden of proof on the plaintiff side. U.S. law in dealing with mental damage, when the third person there are two theories:first, the range is dangerous theory. The second theory is reasonably foreseeable. Justice in the United States, the two theories are often used together. I propose the establishment of indirect victims should be acknowledged and moral damage compensation system, and expand the spirit of the scope of the right to damages, the accident at the scene witnessed some people are statistics on the claimant's scope.This paper propose for improvement of mental distress compensation rule in our country.