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Comparison Study In Applied Scope Of Compensation For Mental Distress Between China And Japan

Posted on:2007-04-17Degree:MasterType:Thesis
Country:ChinaCandidate:Q Z FanFull Text:PDF
GTID:2166360215987008Subject:International Law
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The system of compensation for mental distress was first established in Europe. France established the compensation for mental distress in the mid-19th century, and it was a complete symbol that German Civil Code was enacted in 1900. The commencement of the compensation is so late in our country that we have to consummate it quickly. The problem about the judicial protection of personal and identity rights hadn't been resolved by any law before General Principles of Civil Law was enacted in 1986. It gave special criterions about personal and identity rights, so that it became the first Milestone about the protection of personal and identity rights in New China. Judicial Interpretation that is given by The Supreme People's Court in 2001 brings the protection of personal and identity rights to a new level. But because of the gradual change of social economy and living, it creates more and more, more and more complicate social relationship. Today the laws and statutes are impacted by the condition of legislative economy, politics, idea and the legislative art, so that the protection of personal and identity rights is lagged, so the requirement of lawmaking in the compensation for mental distress is gradually increasing. This thesis gives a comparison about development history, applied main body, applied object and responsibility scope of compensation for mental distress between China and Japan, so that we can find the differences about applied scope of the compensation between this two countries. Because of these, we can find shortage about the system of compensation, and give some fair advices about complementing lawmaking in the compensation for mental distress.There are six sections in the thesis:Section 1 mainly not only introduces the conception, nature, function and composing, but also simply explains the basic theory of compensation for mental distress. This section means it is a law system developed and complimented gradually, and its composing not only has something in common but also has its own characteristics. The compensation for mental distress belongs to property responsibility essentially, and it has many functions, for example, conciliation, punishment, expiation and so on. Section 2 emphasizes the comparison of the development process of compensation system between China and Japan, and introduces established history, legislative environment and drawed legal basis of the compensation system. So we can find the different problems and produced impact that we encountered in the process of the establishment about the compensation. Section 3 emphasizes the comparison of applied main body scope of the compensation for mental distress between China and Japan. Natural person can become rights body and obligation body. Artificial person can not only become rights body, but also become obligation body of the compensation in Japan, but it only becomes obligation body in China, and the obligation body of the compensation doesn't contain the country or administration department. The embryo can only become the rights body of the compensation in Japan, but it can't become rights body and obligation body in China. Section 4 emphasizes the comparison of applied object scope of the compensation for mental distress. The systems of compensation both protect personal rights, identity rights, something valuable of natural person and the extended personal advantage of the dead in this two countries. There is no law about the compensation of artificial person in this two countries. But the practice of juridical activity admits request rights of the artificial person in Japan, and the rights can't be admitted in China. Section 5 emphasizes the comparison of the protection scope of compensation for mental distress of artificial person between China and Japan. The applied scopes of compensation for mental distress both contain property compensation and non-property compensation. The object that is payed by Japanese property compensation responsibility includes natural person and artificial person, but it only means natural person in our country. Section 6 gives some advices about complementing the compensating system for mental distress. The first advises the main body scope of compensation for mental distress should be enlarged. It also advises artificial person should be the main body of rights and country or administration department should be the main body of rights and country or administration department should be the main body of obligation, but the party of criminal cases should be the main body of rights or obligation. The second advises the applied object scope of the compensation should be enlarged. The ashes of the dead and the rights of privacy, chastity, environment and so on should be put in the protection scope of compensation for mental distress. Even the protection of identity rights should be strengthened and it gives a concept of common identity rights.
Keywords/Search Tags:Compensation for mental distress, Distress fact, Main body scope, Object scope, Responsibility scope
PDF Full Text Request
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