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Study Of Several Problems Existing In Mental Injury Compensation System In Our Country

Posted on:2009-04-14Degree:MasterType:Thesis
Country:ChinaCandidate:H J ChengFull Text:PDF
GTID:2166360242481736Subject:Law
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The mental injury compensation system had been introduced into our country for some time, which was not long. Mental injury compensation system had been received in law educational world and the practice, and the attention of it was not inferior to any other law. Mental injury compensation was the hot spot and difficult problem in law educational world and the practice. It also carried on the reconsideration self-criticism research to our country's laws and regulations. With the development of social economy and the growth of national wealth, all kinds of legal regimes were perfect. Reasons, we thought they were before, were inadequate. Our country possessed the qualifications to perfect mental injury compensation system in our country, such as material, the thought, legal base and referential international legal regulation. All these made the problems existing in mental injury compensation system more serious. These problems should be solved as soon as possible.This manuscript embarked from the concept and rationale of mental injury compensation system. We analyzed the current situation of mental injury compensation system above the domestic and foreign original research results. We made systemic elaboration and analysis to mental injury compensation system in our country by using many methods, such as compare and analysis.This manuscript contains five parts.The part one is foreword. We gave a simple introduction of the laws which mental injury compensation system existed in. We also introduced the current mental injury compensation system in our country.Part two is the summary of mental injury compensation. First, we introduced the definition, character and function of mental injury compensation. We introduced the application about the concept of mental injury compensation in many foreign countries in this part. We defined the true meaning of mental injury compensation in this part. From the analysis to the character of mental injury compensation, we understood the connotation of mental injury compensation better. From the analysis to the function of mental injury compensation, we defined the purpose of it clearer. Then we knew that mental injury compensation system went through three stages in the history, which were the germination period of ancient law, the formation of modern times and the completeness of modern times. From the analysis of mental injury compensation in various periods at home and abroad, it was not different to see that the mental injury compensation system was different provisions at different times. We also could see the scope of its protection was more perfect. Then we introduced the civil law countries and the common law countries on moral injury compensation system theory and legislation. From these provisions, we will be able to find perfect draw for Chinese mental injury compensation system.The third part is the problems about scope of the mental injury compensation system in our country. In the scope of the mental injury compensation, the scope of the subject and object covered in our country's current mental injury compensation were introduced. On the scope of the subject of mental injury compensation, the discussion was focused on the whether the corporation can be included into the principal part of rights in the mental injury compensation. The reasons of the limit of natural persons as the theme of mental injury compensation and the excluder of corporation from the mental injury compensation were used to demonstrate our perspective. In the scope of the object in mental injury compensation, the elaboration was mainly from the aspect of the legislative policy. From the study of the two models of law in main land, the current legislation for the mental injury compensation in our country is the trend. But, there are still some problems in the scope of the object in mental injury compensation. Now, the requirement about mental injury compensation in the civil litigation included in the criminal litigation was inadmissible. However, the difference between the independent civil litigation and the civil litigation included in the criminal litigation was only the procedure, no difference in substantiality exist, therefore, the law should recognize the right of the plaintiff in claiming of the mental injury compensation in the civil litigation included in the criminal litigation.The fourth part is the problems about the principles and level issues of the mental injury compensation in our country. In our opinions, the principles of the mental injury compensation should include the console-based principles, the principles of the limit of the amount of the compensation and the principles of free discretion from judges. About the amount of the mental injury compensation, we discussed it in theory from the amount of the mental injury compensation stipulated in the tenth act of Supreme Court"interpretation". We also put forwarded some factors that should be considered.Part five is the mental injury compensation problems existed in our country's State Compensation Law. In this part, by researching the state legislation of the mental injury compensation in State Compensation Law, we deemed that it was necessary to perfect the mental injury compensation existed in the State Compensation Law. We expounded the necessity. Finally, we discussed the mental injury compensation design in the State Compensation Law from three points of view. The three points of view were principle of mental injury compensation, scope of mental injury compensation and the amount of mental injury compensation, which were applied to the state tort.
Keywords/Search Tags:Compensation
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