On Compensation For Spiritual Damage In State Compensation

The country infringes upon the right whether gives the spirit damage compensate is weighs a national democracy and the government by law level important symbol. On February 26, 2001 our country Supreme People's Court made "about Determination Civil Spirit Damage compensate Responsibility Certain Questions Explanations" has made the stipulation on the civil right infringement spirit damage compensate, but in exercised the citizen spirit regarding the state agency and its the staff which in the authority process right infringement created to harm whether should give the compensation, had the flaw in the law. On March 17, 2004 ten session of National People's Congress two conferences pass the constitutional amendment stipulated that,"National respect and safeguard human rights". In view of our country compensation law in the spirit damage compensate law flaw, the author believed, creates the harm to the country abuse of authority, our country only stipulated to creates the matter to lose may request the compensation, denial country abuse of authority spirit damage compensate system, this is unscientific.Develops the people along with the society which brings to the legislation request day after day enhancement, the perfect our country present country compensation method call is more and more high. Already became the modern government by law the spirit damage compensate as an our country compensation system content a basic request. The author has carried on the analysis elaboration in this to the national right infringement spirit damage compensate certain questions.First this article elaborated establishes the spirit damage compensate system in the national compensation the necessity. The author has carried on the analysis from the theory and the reality two aspects. One, establishment country right infringement spirit damage compensate rational. The establishment country right infringement spirit damage compensate is the implementation carries out "Constitution", the perfect democratic government by law, the protection of human right request, also is adapts legal equal principle manifesting, in front of the law everybody equality.Two, establishment country right infringement spirit damage compensate realistic necessity. The establishment country right infringement spirit damage compensate is advantageous to the full protection relative person's legitimate rights and interests; The maintenance and the surveillance state agency and its the staff legally exercises the authority, limits its authority abusing by standard its behavior; Simultaneously also conforms to the national legislation tendency,consummates the national compensation method inevitably request.Next, the spirit damage compensate turns over to the responsibility matter of principle about the determination country compensation in:The academic circles has the different viewpoint and the argument, the existing national compensation law used the illegal achievement to turn over to the responsibility the principle of equality, was only in the extremely individual aspect, turned over to the responsibility take the result as the supplement. I think in the national compensation the spirit damage compensate turns over to the responsibility take the result to turnover to the responsibility principle as its compensation to conform to our country to construct the socialism government by law society,safeguards the rights of citizens the need. The illegal principle therefore was designated turns over to the responsibility principle for our country compensation method,its reason takes root to this principle in recognized standard in objective and may be operational. However in reality many cases had demonstrated to the people in national compensation law system does not accommodate the difficult problem which avoids, namely legislation fuzziness causes this principle may operationally miss, originally maintains the compensation to request the person rights and interests turned over to the responsibility principle for legislation value orientation illegal already to become the legal barrier which citizen Uygur temporaryeasily surmounted with difficulty, became the illegal institution to maintain the self- benefit one kind of sharp weapon.Because sometimes lets citizen prove the state agency and its staff behavior illegal truly has many barriers, also the illegal institutional so can exchange looks up evidence collection obstacles established artificial. Just like some scholars said that, "The civil compensation responsibility said is the personal liability, the personal liability is needs the mistake according to. The country compensates the responsibility then otherwise, it is not because the national behavior has any mistake, but is because individual has not shouldered the responsibility the basis, cannot belong to this kind of loss this individual, but must bear together by the entire society. The pawnshop manner and the victims all are individual time (civil compensation), the harm responsibility burden is must have by them in,but the pawnshop manner which the mistake a side bears for the state agency, suffers injury the artificial individual time (nationalcompensation), then is does not need to determine whether the state agency does have the mistake, whether there is only needs to determine the victim mistake, so long as the victim does not have the mistake,does not have to undertake the harm consequence, must belong to the national compensation responsibility."Once more, the principle which the spiritual harm indemnity should follow about the determination country compensation in. The definite national right infringement spirit damage compensate amount should follow principle, not only is the research, the formulation spirit damage compensate evaluates the mentality and the anticipated foundation, moreover is the explanation and the operation spirit damage compensate amount standard and the method reference basis; Even may say, it or the spirit damage compensate law system centralism manifests. Studies this question both to have the legal science methodology significance, and has the instruction significance which practices. I believe below that, should follow the principle:Compensates, comforts primarily, punishes for the auxiliary principle,the compensation amount has the limit principle, judge freely decides after deliberation with the non- property relief primarily, the property relief is the auxiliary principle.Finally factor which should consider about the computation spirit damage compensate: Mainly has violates the person mistake degree, the abuse of authority way, the situation and the scope, the victim spirit harm degree and the consequence, the right infringement person whether did make a profit, makes a profit amount how many as well as the lawsuit at that time victim residence place economical condition,simultaneously had to consider victim's factor and so on social position and professional characteristic as well as abuse of authority social consequence and social influence.I believe, because the spiritual loss is unable to calculate, therefore must suitably consider the compensation requests the person anticipated benefit the loss.