| With the development of the society and the advance of the human civilization, we should not only meet the citizen' higher physical requirements, but also protect the benefits of the citizen' spirits. The system about the judicial relief of the mental injure has been sufficiently bodied in civil law . However, current criminal law and criminal procedural law, especially the response to the question whether the people's court should accept the requirement of the compensation of the spirit injury asked by the victim in the criminal case which made by the super people' court on July 11,2002 excluded the rights of mental injury compensation .The system not only leads to the contradiction and conflict among current laws, but also disobeys the trend of the human rights protect. It is an inevitable trend that the right of the mental injury compensation is established in incidental civil action. The article introduces the history development of the mental injury compensation, the necessity and possibility of the mental compensation in civil suits collateral to criminal, the blemish of the current criminal law and basic speculation of establishing mental compensation in incidental civil action etc. The author puts forward some superficial viewpoints and hopes that will do well to the legislation of criminal procedural law in our country.The article proceeds from a typical case in the preface and leads to the main problem of this article. The main content of this article is divided into five sections.The first part mainly describes conspectus of mental distress. Firstly, the author discusses the definition of the injury and the mental injury, cognition from scholar and the related theories. Secondly, the essay introduces the basic meaning and the function of the mental compensation. The last discussion in this part is about the formal establishment and the evolution of the mental compensation.The second section of the article mainly introduces two kinds of standpoints of the spirit injury compensation in incidental civil action currently; thenegative theory and the affirmative theory.The third part analyzes the necessity and possibility of the mental compensate in civil suits collateral to criminal. On the one hand, the author analyzes its necessity from five aspects. (1) It is a request that Chinese law adjusts to national requirement after joining WTO. (2) It is a demand in law that the initiative of the common laws is changed. (3) It is a need that protect criminal victim and punish criminals. (4) Adopt to legislative aim of the incidental civil action. (5) Clears up different legislation and supports the unification of law. On the other hand, the author describes the possibility of the mental compensation from the angles of theory, law and judicial practice.The fourth part concerns the blemish of the system of spiritual harm compensation in current incidental civil action when it being in criminal lawsuit, which has five following supports: (1) Legislative conflict of criminal law and civil law. (2) Penal liability conflicts with civil liability. (3) It is a disadvantage that protect the legal rights of the criminal victim. (4) Further forcing the wrong idea of the judgers that criminal case is more important than the civil one. (5) It is also a disadvantage to protect the rights of the criminals.The fifth part is concerning basic speculation of establishing the system of spiritual harm compensation in incidental civil action, which is also the highlight of innovation of this article. This part mainly discusses the condition, subject, the basic principles of criterion of liability, the methods of compensation and the rules of establishing indemnification of criminal etc. |
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