On Compensation For Moral Damage

As a new research field in the science of civil law in our country, theindemnification of moral damages has been one of the important subjects inthe civil law research these years. More concerns have been put on it.However, current civil law and regulations fail to provide sufficient protectionagainst the moral damages. And those relevant law and regulations areincomplete and ambiguous as well. The falling behind in legislation, therefore,gives rise to disputes among legal experts and in the judicial practice on thedefinitions of moral damages, standard of the calculation of the compensationfor moral damages, and application scope of moral damages etc. It hinders theefforts to establish a system of compensation for moral damages characteristicof China's specific circumstances. It also goes against the efforts to strengthenthe protection of human rights and the implement of the compensation formoral damages. The author in this article makes an explorative research, through acomparative and analytic approach, on some problems concerning theimplement of the compensation for moral damages. Part Ⅰ hereof gives abrief introduction of the history of the indemnification of moral damages,explaining its emergence, development and perfection in the ancient law,modern law and current law respectively. Part Ⅱ discusses variousdefinitions of moral damages and their indemnification. There haven't beenclear definitions of both concepts yet in the current law and judicialinterpretations. And there are different interpretations in different countriesand different civil law works. The two concepts, however, are the basic anddecisive factors in determining what can be regarded as a moral harm andwhether it deserves being compensated. Therefore, the author makes a broadcomparison and deep analysis on the contents of the two concepts, referring tothe laws of different countries and opinions of some legal experts. Theconclusion is that a so-called moral harm is actually an unnatural state ofmind. And the nature of the compensation for the moral damages is a materialcompensation for the unnatural condition of mind inflicted on the victimcaused by the offender's infringement of his rights. Part Ⅲtries to define theapplication scope of moral damages, mainly involving the subject and objectof moral damages. In respect to the object, the acts violating a natural person'srights of life, health, body, personal freedom, common personality, status,property and the breaching acts of contracts can all be possible causes ofmoral damages. In particular, there are two types of circumstances concerningthe breach of contracts and moral damages caused thereby. One circumstanceis about the moral damages caused by the breach of contracts of anticipatoryand other kinds of contracts. The other is about those occurring under thecoincidence of contractual liability and tortious liability. Both types of moraldamages should be indemnified. Part Ⅳ concentrates on the standard of theamount of compensation. It is argued that the amount of compensation shouldbe left to the discretion of courts, supplemented by the principle of areasonable limitation and being subject to specific circumstances. In 4determining the amount of compensation for moral damages, a judge shouldtake into account the degree of guilt of the offender and other specific mattersmeriting attention. The court should also take into account the degree of thephysical and moral suffering caused to the victim. The judicial discretion,according to the author's opinion, should not be based on the property statusof the offender and the local average living standard in the place where thecase is sued. Part Ⅴ is on the issue of the protection of personal rights andthe claims in the supplementary civil action in criminal proceedings. Theexpansion of the protection against moral damages to the supplementary civilaction in criminal proceedings repre...