Study On Amount Determination In Spirit Damage Compensation

Since implementing the spiritual compensation principle in the practice after the "French People Statute book" has announced in 1804, the spirit damage compensate law system had more than hundred years'history, the various countries nearly in the varying degree confirmed or executes this kind of system. "General provisions of the civil law" and correlation law promulgating with execution in our country, have opened the channel for the Chinese establishment spirit damage compensate system. Among this, the most important difficulty is the question of spirit damage compensate amount definition.On the basis of precisely analysising "General provisions of the civil law" and "Supreme People's Court about Determination Civil Right infringement Spirit Damage compensate Responsibility Certain Questions Explanations" in the basic value orientation foundation, the paper has used legislation and the solid service experience for reference from the main typical country and the area to the spirit damage compensate system, centralisted on spirit damage compensate amount definite question, unified present legal the stipulation, coalescented the practice in certain typical cases, analysised the thorough question deeply, and proposed the more scientific reasonable solution.The first part mainly elaborated the spirit damage compensate amount concept and the determination significance, unioning to the understanding of domestic and foreign spirits damage compensate amount determination, I attempt seek the absorption experience and the method what can profit from for our country. The essence of spirit damage compensate is that compensating victim's spiritual harm through the material compensation way, not the victim's material harm. But the spirit damage compensate system core is the spirit damage compensate amount determination. Determining the spirit damage compensate through the judicial referee, it can comfort the victim, educate, and penalize the infringement person, can guide society forms to respect the other people the personal rights, respect forms the other people personal dignity legal system consciousness and the good social prevailing custom, and promote our society civilization and make a progress.The second part elaborated the spirit damage compensate amount definite principle with emphasis. At first, I stated the overseas survey of inquiring into on in the spirit damage compensate principle, and then model overseas advanced research results, summarize definite principle of judicial world in the spirit damage compensate amount in our country, and makes the analysis one by one, branch out primary and secondary. This paper also suggested that we can apply some principle, For example "the consideration is suitable the legal precedent the principle" , we attempt to take the determination spirit damage compensate amount the suitable principle, specially we must absorb the case-law country the strong point, it is suitable the legal precedent to instruct the judicial practice. Definiting spirit damage compensate amount principle, not only is the research, the formulation spirit damage compensate evaluates the mentality and the anticipated foundation, moreover is the explanation and the operation spirit damage compensate amount standard and the method reference basis. The spiritual harm indemnity definite principle, is the stipulation, the appraisal and the explanation spirit damage compensate occurrence and the basis, will establish the reasonable basic principle has the positive function to the judicial practice and the fundamental research.The third part is from subjective and the objective two aspects which has analyzed the spirit damage compensate amount determination basis. This involves to the spirit damage compensate amount determination most main question. This article unifies "Spiritual Compensation Explanation" in the 10th stipulation "six factors", carries on the synthesis classification analysis, proposed subjective, objective factor scope, emphatically induces the primary and secondary factor, expounded how two unifies in the determination compensation amount solid service operation displays respective should have the function. On subjective began from the right infringement person and the victim two aspects, on to be objective the consequence which created from the right infringement and is sued the court the average living standard two aspects to do to the determination spirit damage compensate amount basis the elaboration. But this "six factors" are certainly imperfect, certainly cannot cover in the daily life the infinitely varied actual situation, moreover along with the social economy culture level of development and the people real standard of living enhancement, these bases possibly can have the change, but also needs further to be thin and the expansion. This although is advantageous to judge's subjective initiative and the enthusiastic display, but often can neglect other factors when the determination spirit damage compensate amount play a role, and possibly causes freely to decide after deliberation the power abusing, obstructs the judicature to be fair.The fourth part has made the thorough discussion to the spirit damage compensate amount definite method. In the related spirit damage compensate question, compensates the amount determination method to be most difficult, but also most has the practical significance. Through carries on the introduction to the overseas spirit damage compensate determination method, analyzes its advantages, evaluates its success and failure, chooses for our country in the spirit damage compensate amount standardization aspect firmly works as the angle of view, seeks suits the Chinese national condition the definite method. This part in detail introduced the existing domestic some models definite methods, summarize its good and bad points, in our country spirit damage compensate amount determined in the solid service put forward own proposal. Our country must unify the spiritual harm amount the definite method, causes judge when the processing concrete case has alegal basis, avoids abusing freely decides after deliberation the power, maintains the judicature to be fair. The definite spirit damage compensate amount standard method, overcomes the difficulty which in the legal technology appraises, not only is advantageous to the maintenance establishment spirit damage compensate system goal, positively fully protects victim's legitimate rights and interests, simultaneously also causes the court and judge when the determination spirit damage compensate amount has had the certainly objective basis, moreover can powerful prevent judge freely decides after deliberation the authority in the utilization which produces to abuse.This paper believed that, takes day by day along with society's unceasing development and the human rights safeguard, our country will be supposed to absorb the advanced vertical legal regulation, when to formulate from now on the people statute book or will revise "General provisions of the civil law", should the basis which determined to the spirit damage compensate amount carry on thin and the expansion, the increase more concrete indeed decides the standard; The spirit damage compensate amount determined the principle also should gradually unify, favor judge in to lack the law regulations in the situation to be able directly to quote; The definite method must gradually standardize, enables judge when the solution concrete case has a legal basis, has the law to depend on, realizes the judicature for our country fairly to provide the good foundation.The present paper only to our country spirit damage compensate amount determined the system has conducted a shallow research, proposed some legislate the reform opinion to China, this mainly puts the blame on myself knowledge, the ability is limited, from now on also will make the further exploration in the theory depth and the operation utilization.