Study On Several Legal Problems Arising From Mental Damages

Along with the enactment of General Principles of the Civil Law, a preliminary system of mental damages was established, whose scope was expanded as the judicial interpretation of the Supreme Court putting into practice. However, the existing related laws and regulations increasingly can't meet with the needs of practice, which certainly will affect the construction of the society of rule by law, with the social and economic life changing and more and more complex, and the consciousness of right protection strengthening. Therefore, it is necessary to cast light on some basic problems so as to improve theory and better serve social practice and finally establish a uniform and imperfect system of mental damages.The dissertation is divided into five chapters as follows:Chapter one gives a general introduction to mental damages. It is essential to define the scope of mental damages because all damages are not to be compensated. Meanwhile, it analyzes comparatively the systems of mental damages of individual countries in order to improve related legislation of China.Chapter two discusses the scope of mental damages. After comparing the theories on mental damages of individual countries, the author advises to adopt the duality theory for reference, that is, the theory of considerable causality and the theory of rule purpose. The author goes on to put an emphasis in common factors and limit factors of defining the scope of the mental damages. Finally, the author brings forward some viewpoints about virtue right, credit right and marriage freedom right and advise bringing them to the scope of mental damages.Chapter three mainly deals with mental damages actions. It is indubitable that natural persons are right subjects of mental damages. However, whether embryos and artificial persons are the subjects of mental damages or not is still in controversy. The author discusses the necessity of the right protection of embryos and artificial persons and necessity and feasibility of establishment of mental damages system in criminal incidental civil actions and State tort actions.Chapter four is to fix the amount of damages. Compared with the legislation principles of fixing the amount of damages, according to the circumstances of China, such principles should be applied as solace crucial with proper punishment, proper limit and judge discretion. Standards for mental damages should be reviewed in three aspects, namely, victim standard, inflictor standard and objective standard.Chapter five mainly analyzes legislation defects in mental damages of China and puts forward some proposals for perfecting mental damages system of China.