On Construction Of Spiritual Damage Compensation System In National Compensation

Since National Compensation Law came into force on January 1st 1995 in China, many issues appeared. Because the lack of compensation terms for spiritual damage in this law, victims can only get direct physical compensation and they can not get a little compensation for spiritual damage in many cases. This made Chinese National Compensation Law very embarrassed. Though scholars have the same viewpoint that National Compensation Law needs the system of compensation for spiritual damages, there is no uniform opinion on how to set this system. This thesis attempts to do some research on how to set this system.The first chapter researches on the basic theory of spiritual compensation in national compensation. Firstly, it analyzes the term, character and historical development of spiritual compensation in national compensation. Secondly, it compares the similarity and the difference between the compensation for spiritual damages in national torts system and that in civil torts system. Thirdly, it demonstrates the necessity and feasibility of establishment of the system of national compensation for the spiritual damages, which is fair reason for establishment of this system.The second chapter is a comparative review of spiritual compensation system in national compensation of other countries. It enumerates provisions on this system in several countries, such as Japan, Korea, France, Germany, England and the U.S.A. Through the comparison of constitute issues, contribution principle, subject of request, compensation range and amount, it gives beneficial advices on setting our compensation system.The third chapter analyzes the defects of present National Compensation Law and the scholars' manuscript. It discusses the question about criterion of liability of tort law, the tort affecting the public utility facilities, the scope, amount and the standard of spiritual compensation, on which scholars gave various advices. Through the analysis of four scripts, it seeks for more reasonable and more feasible amendment scheme.The fourth chapter tries to establish spiritual compensation system in our national compensation, which is the most important part of this thesis. It discusses necessary factors, compensation principal, compensation range, amount confirmation and evaluation methods of national compensation for spiritual damage. It tries to extend the range of compensation and gives innovative advice about the request subject and how to define the amount of compensation. Based on an analysis of the term of spiritual damage and relative legislation in other countries, it regards that corporation should be included as a subject who can request the compensation for spirit damages. The author considers that main methods should be tiptop limitation compensation and different compensation based on different damage, while the supplement method should be compensation confirmed by judges' discretion in the amount evaluation and confirmation of spiritual compensation. At last, the author offers her manuscript of spiritual compensation of National Compensation Law and gives her reasons.