The Study Of Certain Issues On System Of Mental Compensation For Damage

The system of the compensation for moral damages is a system of legal protection which is legislated popularly by the civil law of each modern country and which is an important compositional part of the system of legal protection of the human right. It's late to legislate on the system of compensation for moral damages in our country, so the legal provisions are not completed and the technology of legislation is not advanced. At the same time, the theoretic study of the compensation for moral damages is not deep and complete in our country yet, so it can't satisfy the requirement of the legislation and the practices of the judicature. To comply with the requirement of the age, and strengthen to build and perfect the legal system of the civil law, and to provide the legal basis for the legal protection of the right for the citizens, on the basis of the overseas experience of the legislation and the technology of the judicature, the thesis concludes the law practices and the theory earnestly and state the certain several controversial issues of the system of the compensation for moral damages, further to set a basis for the future legislation on the system of compensation fro moral damages of the civil law.First, the thesis begins with the conception of the compensation for moral damages, and thinks that it refers to the legal responsibility of the actor who should shoulder to compensate the sufferer with money because the illegal act of the actor make the sufferer suffer from the moral pain and the damage of moral benefits, which has the three functions of compensation, comfort and punishment. In the light of this, the thesis thinks that about the compensation for moral damages of damaging the moral right to human dignity, the principle of the responsibility of the fault should be used, while about the compensation for moral damages of damaging the material right to human dignity, we can't just use the principle of the responsibility of the fault only, also we should use the principle of the constructive of the fault, the principle of the responsibility of the non-fault, and the principle of just responsibility.Second, thesis analyzes the range of the compensation for moral damages from the two aspects of the subject and the object, and mainly discusses the controversial issue on the aspect of the subject. Thesis thinks that the mental patient, the person who is physically alive but mentally inert, and the legal person can become the subject of the right of the compensation for moral damages all, while the dead can't be. At the same time, it thinks that the state should become the subject of responsibility of the compensation for moral damages. About the determination of the amount of the compensatory damages of the compensation for moral damages, the thesis thinks we should use the way that the court determines the amount of the compensatory damages of moral damage judging by the certain principles.Third, thesis analyzes the current situations of the system of the compensation for moral damages of our country from the two aspects of legislative situations and judicial situations. It points out that that the main defect of the system of thecompensation for moral damages of our country lies in unclear definition of the system of the compensation for moral damages. The suitable range of the compensation for moral damages is too narrow. In judicial practices, it's hard to grasp the criterion and evaluating method of the compensation for moral damages.Lastly, the thesis puts forward the advices to perfect the system of compensation for moral damages from six aspects of the legislative basis: they are the system of the subject, the procedural system of the criminal with the compensation for moral damages attached, the criterion and the amount of compensation, the system of the citing responsibility, and the ways of responsibility of the system of the compensation for moral damages.