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Study On Some Issues Regarding Compensation For Mental Distress

Posted on:2012-09-25Degree:MasterType:Thesis
Country:ChinaCandidate:B R ZhangFull Text:PDF
GTID:2166330338995670Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
With the rapid development of economy and constant improvement of people's living condition, Chinese people are not satisfied with the protection from outer material world any more, and they pay much attention on prevention from mental injury. Compensation for Mental Injury makes human dignity and mental world be the important objects protected by laws, which is a very important rule of human rights protection in modern countries. Legislation in every country emphasizes the rule, and the theory studies on it are sublimated continuously. In general, the scope which applies to compensation for mental distress is widened gradually. In our country, there are some related regulations on the rule of compensation for mental distress, but those regulations are still incomplete, and they need to be replenished by exploring new theories and continuing practice. Based on this, the article discusses the overview of the development of compensation for mental distress, discusses the scope of application of compensation for mental distress, supplies counting clues of compensation for mental distress, and supplies suggestions improving the incomplete situation of compensation for mental distress in our country.Firstly, the article introduces general problems. It mainly analyses the derivation of the rule and how to definite and understand the rule through some conceptions. Secondly, the article introduces the evolution of compensation for mental distress, which consists of two parts: one part discusses the overview of the development of this rule at abroad; the other introduces the present situation of the rule at home. Thirdly, the article analyses the scope of application of compensation for mental distress. The author reveals that specifying the limitation of the scope of application of compensation for mental distress by enumeration makes the regulation of enumeration not apply completely to the complicated problem appearing in reality. Regarding of the need of reality, our laws shall widen the scope of application of compensation for mental distress. The article also discusses the calculation and determination of solatium for mental distress. In China, the ideas how to confirm the sum of compensation for mental distress are not unitive, and judicial practices are not unitive , either. Present judicial interpretation intends to confirm the sum of compensation for mental distress by analyzing the faults of inflicter, but the author suggests that it shall confirm the sum of compensation for mental distress by analyzing the mantel distress of aggrieved person. In addition, the article also discusses some problems of compensation for mental distress applied to special fields, such as the problem that compensation for mental distress should or shouldn't be taken into account in the criminal offense, the problem that compensation for mental distress should or shouldn't be used in breach of contract, and the problem of judicial person's qualification as a subject of law in compensation for mental distress.Finally, the article analyses the deficiency of related regulations in China, and supplies some suggestions improving those regulations. At the same time, the article advances an imagination how to improve the rule of compensation for mental distress: we should regard mantel profit as a basic civil right and interest, and take measure to protect it in law. Compensation for mental distress should be carried out if mental profit exists.
Keywords/Search Tags:moral damage, mental profit, mental distress, scope of application, improvement
PDF Full Text Request
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