| Mental damage compensation, or simply called mental compensation, which is to compensate mental damage materially, is the tendency for modem civil law development. Our country adopted mental compensation relevantly late.General Principle of Civil Law of the People's Republic of China , effected on January 1, 1987, has set rules on civil liabilities on mental damage, by basing on domestic and foreign legislative and judicial experiences in civil law area. The rules on compensation for mental damage have provided legal guarantee on the goal of "respect and protect human rights" raised in the 15th Meeting of CCP.In recent years, cases of which victims seek compensation for mental damage are in increasing tendency . This trend just shows the wakening of Chinese citizen's awareness of rights and laws. As the improvement of citizen's awareness of rights and laws, the principle of "administering the country according to law , constructing the socialist legal country ", raised by the CPC and the country , will be promoted. As our mental compensation system is not so perfect, there are still not any systemic and definite rules on the conception, scope, principle, ways of remedy, and quantum of damage . Actions in consideration and actual operation are not consistent .Therefore , it's necessary to borrow foreign advanced examples of legislation , case, and theory, to perfect our mental compensation system. This article taking measure of comparing and analysis, studies the theory and practice of foreign advanced mental damage compensation system, specially studies the several key issues in our mental damage compensation system, raises five points of legislative thinging on perfecting our country's mental damage compensation system , in an effort to contribute to the perfection of our country's mental damage compensation system. There are three parts in this article ,with the following major contents:Part 1 Foreign theory and legislation on mental damage compensationThis part studies theory and practice on mental damage compensation of countries from continental genealogy of law and Anglo-American genealogy of law.Part 2 Studies on relevant issues of mental damage compensation systemThis part discusses several key problems about mental damage compensation system: conception, basis, type, scope, remedy, nature and characters of mental damage compensation, the principle on deciding the quantum of mental damage compensation and the calculation of mental damage compensation amount.I.Conception of mental damage compensation: when the rights of life and health, reputation, name, portraiture are damaged against the law, and the citizen seeks legal remedy, the people's court can order the wrongdoer to give the victim certain amount of money , on the basis of non-property civil liability, by considering the degree of fault of the wrongdoer, the concrete act, consequence, and influence of the tort, the degree of mental damage of the victim, etc., through mediation or judgment.II .Basis of mental damage compensation:1.Theoretical basis of mental damage compensation, on the perspectives of punishment and compensation role of civil liability;2.Objectiveness of mental damage compensation, on the perspectives of mental damage transferring to material;3.According to the succesion of legal culture , money compensation of mental damage is the tendency of civil law development;4.Legal and practical basis of mental damage compensation system in our country.III.Type of mental damage: right of name, right of reputation, right of portriature, and right ofhonor defined in General Principle of Civil Law ,other mental damage in an independentlawsuit.IV.Scope of mental damage compensation: right of name, right of reputation, right ofportriature, right of honor, right of life and health, right of privacy ,right of liberty.V .Remedy fo mantal damage:necessity of money remedy (compensation and indemnity ),limitation and auxiliary (no or less compensation).VI.Character of mental damage compensati... |
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