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Research On Disputed Problems About Compensation For Mental Impairment

Posted on:2008-09-09Degree:MasterType:Thesis
Country:ChinaCandidate:Z XuFull Text:PDF
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The compensation system for mental impairment is essential in compensation system in Civil Law at present. Although the compensation system for mental impairment develops late in China and regulations have not been complete, it has a great influence on protection of human rights and regulating the judicial practices in a period. However, due to its complicity, social speedy development and the society's diversity, problems and disadvantages of the compensation system for mental impairment have occurred and it has hardly met the requirement of judicial practices in china, which couldn't improve protection on human rights. Basing on fundamental theories in Civil Law and current laws and regulations, this article intends to analyze disputed problems in this system to accumulate knowledge in this field and improve trial practice.Firstly, the author illustrates the inherent meaning of mental impairment by the research on comparing its narrow concept and its broad concept.(ⅰ) Mental impairment doesn't only include mental pain, but also the derogation and forfeiture in mental benefits. (ⅱ) Artificial person could also suffer from mental impairment.(ⅲ) Then the author analyzes the relationship between mental impairment and non- pecuniary damages and considers mental impairment as one part of the non- pecuniary damages. Therefore it would be better to use the definition of mental impairment correspondingly. Meanwhile the author defines the compensation for mental impairment.Secondly, the author discusses the controversy about the scope of main body of spirit damage compensation. He reviews some theories in two aspects, the subject of rights and the subject of obligations of spirit damage compensation. (ⅰ) The subjects of rights can be some special natural persons, including persons with no capacity or with limited capacity such as psychopaths, person in coma, babies and children, the victims in the criminal cases and artificial person. (ⅱ) Fetus could also be considered as the subject of rights provided that it is alive in birth.(ⅲ)Nation should also be the subject of obligations.Thirdly, the controversy about the scope of the object of the compensation for medical impairment shall be discussed hereafter. (ⅰ) Mental impairment resulting from the breach of contract should be compensated correspondingly(ⅱ) Victims are entitled to obtain compensation if their status rights are infringed, which induces mental impairment.(ⅲ) Compensation for mental impairment should be paid if some property rights are impaired. (ⅳ) However, victims can't obtain compensation for mental impairment if their some particular status rights are impaired. Torts of status rights should be classified and enumerated.(ⅴ) Compensation for mental impairment could be applied to any right of personality without limitation.Finally, disputed problems on determining the amount of damages for mental impairment are discussed, the principle for determining amount of damages for mental impairment, factors taken into account and points paid attention to in judicial practices. (ⅰ) Principles of judging amount include the principle of emphasizing conciliation rather than compensation, proper limitation principle and principle of judge's liberal judicial power. (ⅱ)Judge should considerate whether or not the infringer shall have enough economical capacity to assume the liabilities thereof on the basis of full compensation when executing liberal judicial power. (ⅲ) It is not appropriate for judges to considerate the victim's status in judicial practices and the amount of damages for mental impairment properly should be constrained.
Keywords/Search Tags:mental damage, compensation for mental damage, the scope of compensation, damages
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