| The system of mental injury compensation in China has already ruled the complaint subject of mental injury compensation, the protected object and factors ought to be considered in determination of compensation. But determination of concrete sum of mental injury compensation needs more discussion. Based on probing into the intension composition of mental injury, linking to relevant theories and practices, drawing on the legislation experience of foreign countries, this article will make a through inquiry to factors which influence determination of mental injury compensation and exact method by which mental injury compensation is determined.The first part of the article discusses the present situation of legislation of determining mental injury compensation and the necessity and possibility of its determination. Currently, there's no unite standard on determination of mental injury compensation in China, which is needed not only because law must be brought into open, but also to limit the power of judge and to prevent blind requirement for high compensation. And it's possible to determine mental injury compensation relatively because of rapid development of psychology, sociology and borderline subject.The second part of the article discusses the intension composition and the range of mental injury compensation. As far as natural person is concerned, the result and external expression of damage of mental benefit are comprised in property loss (directly and indirectly), physical suffering, mental suffering, obstacle to mentality and other non-property loss. Physical suffering includes :(1) Sense of pain what belongs to injury when body suffers hurtful stimulus, and continuous pain what doesn't belong to injury. (2) A series of biological reaction of organism (which can be seen as external reflection of mental suffering) caused by too much pressure that breaks psychological balance. Correspond to three different states of moods, there are three different kind of mental suffering:(1) Frightening mental suffering, compensating for it ought to consider the comfortable effect on the one frightened and his feeling at the moment So most of the factorsconsidered to determine compensation are factors influencing aggrieved party's subjective feeling. (2) Ruled mental suffering, that is wave in mood and loss of psychological balance because of disturbed social life style ruled by law. Ruled mental suffering should be compensated for by legal condemnation to illegal behaviors. So details of tort must be emphasized. (3) Continuous mental suffering, compensates for which is to offer other comfort to make up the loss of aggrieved party. So factors that affect consequence of tort and infringer's attitude are important in determination of compensation.The third part of the article analyses the factors influence the determination of mental injury compensation. First, from the point of aggrieved party's, factors ought to be considered include age, sex, infiinger's attitude to admitting the fault and his getting aggrieved party's forgiveness or not, occupation and social status of aggrieved party, economic level and family situation of aggrieved party, details of tort, objective results of tort. Second, from the point of infringer, factors ought to be considered include infiinger's subjective fault, infiinger's profit situation and ability to bear legal liability. Third, from the point of social justice, aggrieved party's fault and average economic level where he lives ought to be considered.The forth part of the article analyses method of determining mental injury compensation. First, the article briefly introduces and appraises method applied now. Then it puts forward and elaborates 6 points thinking and 4 steps to determine mental injury compensation.The fifth part of the article discusses determination of mental injury compensation separately according to different rights violated.At the end of the article, the author summarizes the main insufficient point of the article, and advances a few legislative sugge... |
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