The Research On The Determination Of The Amount Of Compensation For Mental Injury

The rule of compensation for mental injury was founded in Germen civil code in 1900, It marked the leaping of civil law from traditional civil law to modern civil law. But the legislators and law theory circle have been puzzled by the question how to determine the amount of compensation for mental injury. The countries in Continental Law Legal System and English-America Legal System all try their best to standardize and concrete the amount of compensation for mental injury. But it is too hard for them to achieve the goal. It is a difficult point for the rule of compensation for mental injury and a hot point for law theory circle to determine the amount of compensation for mental injury accurately. Many China and foreign scholars have done great work to solve the problem and advocated a lot of principles and modes to determine the amount of compensation for mental injury, but there are still not a theory which admitted by people all over the world. People have attached importance to protect their mental rights and mental benefits following our country market economy's development and their legal consciousness's promotion. It is an urgent problem to solve for law circle and juridical practice to determine the amount of compensation for mental injury. The author aims to make a tentative study to solve the problem by comparing and using other people's study achievement. The thesis consists of three parts: the introduction, the body and the conclusion and the body includes seven chapters:Chapter 1, Outline of compensation for mental injuryThe compensation for mental injury is a civil legal system that the victim himself or his close relative asks the violator for money compensation because the natural person feels mental agony for his personality right and identity right is injured. Being a social organization, corporate has no mental injury, because it does not have natural person's thinking activity and psychology condition. Negating the right of compensation for mental injury for corporate does not mean that the corporate has no the right of compensation for its name, reputation and honor. The corporate can protect his personality interests by insisting his commercial reputation right. The compensation for mental injury bears three functions of comfort, adjustment and punishment. In order to determine the amount, the compensation for mental injury might be divided into three kinds: mental injury violating the right of life, mental injury of violating the right of healthy and mental injury violating other personality rights.Chapter 2, Doctrines in determining the amount of compensation for mental injuryThis chapter introduces and compares several major foreign doctrines. In China, the doctrine of consideration by judge has the most influence, but it has been questioned widely this years. The author thinks that the free judicial right is the base of the doctrine of consideration by judge. In China, the free judicial right is restricted by our judicial tradition, judicial system and judiciary's quality.Chapter 3, the legislation system and its defects in determining the amount of compensation for mental injury in ChinaThe law such as General Principles of Civil Law of PRC and Law of State Compensation has definite stipulation that the aggrieved has the right to apply for compensation for mental injury as his personality right is illegally injured. But these laws are so highly principled that it is difficult to apply them. In addition, defects such as legislating by different state departments, the standardizations of compensation for mental injury are not identical, bring many difficult for our country's law study and judicial practice.Chapter 4, the principle in determining the amount of compensation for mental injuryThere are three principles should be abided in determining the amount of compensation for mental injury, there are: principle that comfort is major, and compensation is accessorial, principle that consideration by judge and principle that limitation appropriately. The aim of compensation for mental injury is to comfort the aggrieved, it is not a goal but only a way to comfort the aggrieved by offering money. The judge will determine the amount of compensation for mental injury with his free judicial right, but the free judicial right is not a unlimited power. The scope and amount of compensation for mental injury must be limited appropriately.Chapter 5, the mode in determining the amount of compensation for mental injuryThere are three modes should be adopted: distinguishing compensation for different injuries; referring to other laws and consideration by judge. There are different modes for different mental injuries. We can refer to some laws which have rule about determination of the amount of compensation for mental injury. It is necessary for the mode of consideration by judge to exist because of the no-material feature of mental injury. Several modes should be adopted comprehensively to determine the amount of compensation. But the mode will be deferent if the case is not same.Chapter 6, the factors which we shall take into consideration in determining the amount of compensation for mental injuryThe factor we shall take into consideration in determining the amount of compensation for mental injury should include three aspects: the aggrieved, the violator and objective things. There are eight factors in concrete term: The consequence which the aggrieved suffered, the aggrieved family economy situation,the aggrieved personal fault, The degree of violator's fault, the plot of act of aggression, the benefit which the violator gained from the aggression, the standard relating to time and locality in determining the amount of compensation for mental injury. Violator's economy ability should not be the factor in determining the amount of compensation for mental injury because the victim's mental agony doesn't change with the violator's economy ability. It is the core of the system of compensation for mental injury to protect victim's legal interest. It can better safeguard the rights of the victims to determine the amount with the factor"the average standard of living of the victim resident place"instead of the existing judicial interpretation"the average standard of living of court location".Chapter 7, the determination of the amount of compensation for different mental injuriesThe determinations of the amount of compensation for mental injury violating the right of life and healthy can refer to the"State Compensation Law"and"the Supreme People's Court Explanation on Several Questions about Applying the Law in the Trial of Personal Injury Compensation Case"to do the work. While the determinations of the amount of compensation for mental injury violating other personality rights has no law to refer, the judge should take the aggrieved, the violator and objective things into consideration relying on the specific circumstances of the case,The consequence which the aggrieved suffered and the degree of violator's fault should be focused on the need to consider factors.