On Moral Damage Compensation System

With the development of the social civilization and the improvement on the concept on legal system, people are paying more and more attention to the protection of their mental interest, and are attaching more and more importance to the pursuit of their own value, dignity and safety. The problem of compensation for the mental distress resulted from this has been the focus of public attention. To make a deep systematic research and discussion on the compensation for mental distress both theoretically and practically is of great significance on optimizing the protection of human rights by laws, making the civil legislation more scientific, remedying the defect of legislation and justice on personal right and identity right, promoting the full development of a person and establishing a stable social order. This thesis gives a complete introduction and explanation on the compensation system on mental distress based on the fundamental theory and present laws and regulations, the author pointes out the theoretical foundation and practical significance to establish the compensation system on mental distress, also the author puts forward his own assumption on optimizing the compensation system on mental distress in our country based on referring the foreign experience.The thesis is composed of four parts. The first part is the general introduction, which gives a detailed theoretical interpretation and analysis on the compensation system for mental distress. The author holds that compensation system on mental distress is a civil system which the civil body requests the infringer to remedy and protect by means of property for the intangible distress he/she suffers such as the personal interest and identity interest resulted from illegal hurt by the infringer. Proceeding from the concept of mental distress, the author conducts a deep and favorable discussion and relatively scientific definition on the connotation of compensation for mental distress, composed factors, nature and function of compensation system on mental distress, liability distributing principle and component on the compensation for mental distress, legal relationship and concerned parties on the compensation for mental distress and the liability form and scope on the compensation on mental distress.The second part introduces the theoretic basis, social foundation and great significance on establishing the compensation system on mental distress. For a long period, influenced by the viewpoints of "human dignity is not a commodity and can not be measured" from the Soviet Union, the legal circle in our country hade made insufficient efforts on researching the compensation system on mental distress, which cannot meet the actual requirement. The author holds that compensation system on mental distress has theoretical basis because the mental interest can be transferred, the compensation is a comfort for the victim and a punishment for the infringement, and the mental interest can be evaluated. Meanwhile, human's pursuit to their own rights, value and dignity, and the transition and progress of their concept on civil code and the constant innovation of medical science and technology have made the compensation for mental distress recognized widely in actual society. At present, our society is changing to modern society ruled by law, people's awareness to safeguard their rights is increasing, to improve and develop the compensation system on mental distress is the great development trend and people's desire and is of great practical significance.In the third part, the authors makes a systematic and careful comparison research on the legislation and judicial cases on the compensation system on mental distress of Germany, Switzerland, France, Japan and America. As a country exercising continental law, the legal research and establishment on the compensation system on mental distress starts late. Because we are influenced by the legal theory of the soviet union, which held that the human dignity cannot be compensated by money, compensation with money is bourgeoisie legal viewpoint and commercialization of human dignity. So it is opposed theoretically to compensate by money when the human dignity or personal right is infringed.While , the incorrect theory on compensation on mental distress has been clarified gradually when formulating the General Principles of the Civil Law. The issue of the judicial interpretation on the compensation on mental distress symbols great progress has been made on the compensation system on mental distress. But in modern society, when people are paying more and more attention to the democracy, human right and when the laws are protecting the human dignity and mental property with unprecedented efforts, The stipulations in the General Principles of the Civil Law and Interpretation cannot fully protect the personal right of the citizens. From the large amount of legislation and judicial cases in the western countries we can find that after years of theoretical research and practice, these countries have detailed regulation on the scope, way and onus probandi on compensation for mental distress, the related systems are relative complete. The author holds that studying these experience is helpful for improving the compensation system on mental distress. Legislative body in our country shall proceed from the actual condition in our society and absorb the related regulations in foreign countries in a scientific way, and add related regulations in the civil law.This is an urgent need for promoting social development and fully protect the mental rights of the civil body in their civil activities. Also it is a necessary requirement to joint the international system after joining the WTO for our country.In the fourth part, the author reviews the legislative history on the mental distress, fully recognizes the present compensation system for mental distress, especially the judicial interpretation on the compensation of mental distress issued by the Supreme Court symbols the great progress and breakthrough on protecting the personal dignity, personal right and identity right in the field of protecting human right by applying compensation system on mental distress, which is of landmark significance. At the same time the author makes a careful appraisal and analysis on the present judicial situation on compensation for mental distress and points our four defects: decrease the human dignity to dignity right; limit to the right owner, limit to the applicable property liability and limit to the incidental litigation procedure. Based on these review, the author put forward his own assumption on the legislation and judicial system on compensation for mental distress. The author suggests that the theoretical study on personal right be enhanced, the scope of right owner shall be expanded to protect the mental right of legal persons and those who have no capacity for civil conduct; a compensation system on mental distress incidental to criminal case shall be established; the compensation scope of mental distress shall be expanded, especially, the reasonability for compensation on infringe name right, credit right, the right to know, the right of spouse and serious breach of contract. As for how to decide the compensation sum scientifically, the author holds that although the stipulation of the 10lh article in the " Interpretation on Some Problems Related to Deciding Compensation Responsibility on Civil Mental Distress issued by the Supreme Court, but it is not enough to handle the various cases on mental compensation with that basis. The most defect is that it is difficult to enforce it. Certain standard is needed for a judge when considering the compensation. The calculation of the solatium mainly included three methods:compensation method identifying distress ways; compensation method with maximum compensation sum and compensation method with judge's proper consideration, among which the two former methods are basic method, the third method is specific method. The author tries to classify the material mental distress on dignity right into 11 grades and classify the mental distress on dignity right into three grades: serious, medium and slight. Also the author gives the maximum compensation sum of various metal solatium. At last, on the calculation of the solatium for mental distress, the authors puts forward to establish three-level compensation committee on mental distress and invite related experts to calculate the sum according to the maximum sum level by level.Finally, the author holds that new stride will be made on the compensation system on mental distress in our country with the progress of the theory on civil laws and the enrichment of the practical judicial experience.