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The Improvement Of The Mental Compensate Institution In National Compensate System

Posted on:2013-10-02Degree:MasterType:Thesis
Country:ChinaCandidate:L JinFull Text:PDF
GTID:2246330362973533Subject:Law
Abstract/Summary:PDF Full Text Request
Spiritual damages by state tort refer to the damages like spiritual agony caused bystate tort to the individuals.This kinds of damages can happen in offending in dividuals’personal rights,and individuals’ property rights as well.The establishment of a spiritualdamages compensation law and the degree of its completeness is a mirror of thedevelopments of democracy,legislation,human right of a nation.Our NationalCompensation Law stipulates that“in any case under article3or7,if the victims sufferspiritual damages,it is required within the scope of the influence of the tort behavior,toeliminate the bad influence,rehabilitate the reputation for the victims,and apologize tothe victims as well.If the damage is serious,solatium must be made to the victims”.Thisshows that the state respects the dignity of the civilian,and symbolizes the start-up of thespiritual damages compensation law of our country,which is a big stepforward.However,the spiritual damages compensation law of our country was justactivated,it has a lot of defects in the aticles and it lacks practicality in many cases,so itneeds to be improved.This paper comprises four parts,including analyzing the meaning,nature, elements,as well as the legal basis for spiritual damages compensation law,and combing thesystem of our national spiritual damages compensation.Then discussing the defects ofour national spiritual damage compensation,and thus making some suggestions.Finallydiscussing the system of national compensation for spiritual damages and itsparticulars,expecting to made contribution to the perfection of the spiritual damagescompensation law of our country.Firstly I talked about the concept,nature,elements and the legal basis of the nationalspiritual damages compensation.That the spiritual damages can happen in offending individuals’ personal rights,and individuals’ property rights as well.It is difficult todetermine the scope,the method and the amount of compensation.The spiritual damagecompensation has the nature of property compensation,and need to consider manyfactors.The national spiritual damages compensation including the mainelement,behavioral element and damage the result.Due to our new NationalCompensation Law has just been detemined mental damages solatium,which to a certain extent the state compensation for moral damage compensation system.However,the system has just started,it has a lot of defects need to be improved,mainly reflects inthe law is too simple,only little people can claim the right,but such as legalperson,fetus,person who has no sense of distress,dead and so on did not make therelevant procisions.Still the range of spiritual damage compensation is narrow,includethe rights of life,person,health,reputation,honor.But in the real life and judicial practicethe spiritual damages by state tort refer to the damages is not only these rights,alsoincluding a body separated parts of the body right,the right of self-determination onmarriage,privacy,the right of chastity,right of kinship,inheritance and otherrights.Finally the spiritual damage compensation standard is unknown,and the standardrelating to time and locality in calculating solatium for mental distress are unknowtoo,these are all not conducive to judicial operations.I think we should make clear theprinciple of the system of compensation for mental damage and liability,enlarging therights scope of the spiritual compensation which contents the right of the property.At thesame time,the essay will focus the discussion on the people’s right of education anpolitical rights in the scope of other rights.Besides,the paper will analysis and define the“serious consequence”in the law of state compensation and bring up the specificamount of the compensation for damage.In other words,the specific amount will basicon the different methods’ advantages and make a compromise on the calculationmethod.At last,the thesis propose the idea that the judicial interpretation should be madeto adapt to the judicial process of the state spiritual damage compensation.Forexample,we can consult the regulations of the civil tort for the burden of proof and thecollection of the evidences.I hope these advices can make some help for the system ofcompensation for mental damage in our country.Finally I discussed emphatically thecompensation for mental distress of embryo,person who has no sense of distress,legalperson,dead,the punitive damages,the recovery system.
Keywords/Search Tags:State Compensation, National Compensation, Mental Distress, Compensation for Mental Distress
PDF Full Text Request
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