| Criminal victims can get effective relief for being trespassed, which is an important institution to maintain the rights and benefits of them. However, according to the present laws in our country, if the injury which criminal victims suffered from is mental, they may not be awarded the compensation for mental damage by criminal and attached civil lawsuits. In judicial practice, even if the criminal victim initiates the prosecution again, the chance that he/she can get the relief is very little. Because there are contradictions between criminal capital executive program and civil enforcement procedure. What’s more, the prosecution costs a lot but the result hardly helps."The applicable law means to’understand’and’explain’legal terms."[1] In this circumstance, this paper is based on the study of mental damage compensation in criminal and attached civil lawsuits regulation, but tries to obtain the relief with making the mental damage transferred to "material damage". The author tries to identify the organ which belonged to victim but has been out of victim’s body because of the criminal to be "material". That is to say, to prove that there is material damage caused by the mental damage, which will be a breakthrough or another solution to get the mental compensation. Besides, the standards to measure how hard the damage is from home and abroad are considered to set a new compensation standard which puts forward the concept of "organic material". This standard is set with considering the actual situation in China. And the standard is for being a theory to support judicial practice and being applied in it. For distinguishing from the common concept of "material", it has to be stressed that "organic material" shares the same reference with the "material" mentioned above. This paper is divided into five parts.Part I In this part, the author firstly clarifies the concept of the criminal victim. That is to say the range of criminal victims is limited among natural persons without including legal persons or other organizations. Then through the analysis of bottleneck rules of problems about victims’compensation for mental damage concerning about physical injury cases in the existing domestic criminal laws, the paper places the way out of compensation for mental suffering in the rule of "material damages" so as to open the door to gaining compensation for damage for "apparatus".Part II This part is the focus of the whole thesis. Only when organs from the human body are defined qualitatively as material can criminal victims get compensation for damages according to The Criminal Law, Criminal Procedural Law, and related provisions where material damage is involved. In order to demonstrate effectively that organs from the human body are material in nature, this part lays emphasis on the theoretical basis and rationality of organs from the human body as material from two perspectives, namely, human medical waste theory and organ transplant theory. In this way, the theoretical foundation can be laid for criminal victims to get damage compensation for their organs.Part III The part is the most important one of the whole thesis. Comparative analysis is adopted to make a comparison among calculation methods of human damage compensation both at home and abroad. After analyzing the weaknesses of these methods, a creative calculation method of organ damage compensation is provided by the author based on characteristics of different organs. What each letter in this calculation method stands for and why they are taken into consideration are also elaborated. This calculation method is practical, and will help solve the problem of free discretionary power on the part of the judge when human damage compensation is involved. In addition, from the perspective of disability classification, the author provides exceptional explanation for two kinds of injury cases, namely, rape and injuries resulting in death, where the criminal victims are subject to more serious mental injury, so as to reflect the social function of the law and to protect effectively legitimate rights and interests of criminal victims.Part IV Considering the implementation of compensation for "apparatus" damage will trigger some practical problems, the author puts forward corresponding measures based upon the relationship among compensation for apparatus damage, punishment and the conventional civil compensation, and the problems about liability of the compensatory obligor, disablement rate appraisal and implementing difficulty of compensation fee in practice in the hope that the method on compensation for "apparatus" damage can be effectively implemented. Part V In this part, the author elaborates on the problems of how to introduce the newly emerging thing——compensation for "apparatus" damage, namely independent legislation, attaching to which law or judicial interpretation, and whether this compensation coordinates with other existing legal norms. Besides, the paper also looks ahead to the function of the compensation for damage from the angles of society, individual and legal systems in the hope of realizing the transformation from the expected to the real. |
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