A Brief Study On China's System Of Compensation For Emotional Distress

The system of compensation for emotional distress is a major component of the damages system recognized in modem civil law. In 1900, The Civil Code of Germany adopted, the provisions for the protection of personality right and established the non-property damages concept, initially and explicitly. For a period over a century thereafter, such theroy of non-property damages has been one of the most controversal issues in the field of civil law.The system of compensation for emotional distress didn't emerge in China until the policy of reform and opening up were empoolyed, and the commodity economy and social, legal culture started to develop vigorously. The General Principles of Civil Law of the PRC, enacted in and effective as of 1986, established the grounds for the compensation for emotional distress to the Personality in China, for the first time. Following the intent inherent thereof, the compensationfor emotional distress to personality has been further improved due to the continuous extension of the application of the same as a practial matter. However, as a newly established thing, a few defects and problems relating such system have appeared in the field of both the legislation and the enforcement, which are imperative for both the theorists and practioners to improve and come up with countermeasures, through their efforts.This paper is designed to deal with and explore the due and appropriate patterns of both legislation and jurisdiction by elaborating on the general understanding of, advanced example and experiences of foreign legislations of, the scope and rules of compensation for emotional distress and the current condtions of the system in China.This paper is made up of four parts, with the content of about thirty thousand words and footnotes of four thousand words.Part I is the general introduction to compensation for emotional distress, whereby the author mainly emphasizes on the emerging, development, and the final recognization of the theory of compensation for emotional distress, and the implication, properties(characters) and functions of the system of compensation for emotional distress, the author also classifies and explain the fundmental theory for the system, and concludes that the compensation for emotional distress is a legal term which has being continuously-developed and improved-italways keeps changing and tending to expand, with the social advacement, although being restricted and limited by the legal concepts and economic conditions, in a certain social stage. Part II is the foreign legislation practices of compensation for emotional distress, in which the author points out, after comparing the emergence, development and fundmental theories of France, Germany and Switzerland and concluding the advanced legislation experience is instructively conducive to the further legislation in China, that China shall follow the suit of legislation of Germany and Switzerland to perfect its system of compensation for emotional distress, employing the pattern of combination of itermization and generalization.Part III is scope of compensation for emotional distress. The author concludes, after introducing various theories attempting to define the scope of compensation for emotional distress, that neither single theory described is able to be used convincingly to be the ground to define the scope.and believes the scope shall be determined, considering both the individual and society, in accordance with the requirments of equivalent causal relations and the satutory intents, furthermore, the author explain the connotations of the interests of personality and other interests, protected by China's relevant laws and regulations.Part IV is rules of compensation for emotional distress. The author, in perpestive of the determination of liability, puts forward that the fault-based liability is the basic principle, and thenon-fault based liability, explicitly provided for in Laws is the supplemental principle, in the process of determining the compensation for emotional distress. Particularly, the author points out the non-fault based liability principle is only applicable to the cases of damages to life, health and certain rights in respect of body. .Subsequently, the author reasons the calculation method of solatium for emotional distress, and concludes, after an objective analysis on the impact of judicial interpretation on the assessment of solatium, that the method of determning the solatium shall be under the discretion of Judge, different for different approach of offending, and restricted by the maximum amount, conjunctively or disconjuctively (as the case may be).