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Theory Of Moral Damage Compensation System In Our Country

Posted on:2013-05-07Degree:MasterType:Thesis
Country:ChinaCandidate:H WangFull Text:PDF
GTID:2246330374972276Subject:Law
Abstract/Summary:PDF Full Text Request
Compensation for moral damage is different from the general damages, and has its own peculiarity. It mainly involved the exclusive right to request for compensation, the compensation standard both subjective and objective, the plurality of compensation factors and the uncertainty of the amount of compensation. It is based on these peculiarities that has attracted many scholars and experts dedicated to the study of this system. In addition, the growing awareness of rights and the pursuit of mental health are the reality impetus of institutional development.Since the founding of China, our country’s legislative system of compensation for moral damage experienced in the blanks, to establish, to develop, to mature and to the new development of five stages, which also represents the development process of China’s system of compensation for moral damage. Tort Law in the People’s Republic of China officially implemented in July1,2010, it’s the first time that the mental damage compensation system appears in the level of the Basic Law, it also makes our country’s moral damage compensation system in the legislative process entered a new stage of development.However, even if the new law, including provisions for compensation for moral damage system there are still many inadequacies:First, the compensation for moral damage compensation of the system is not clear, such as the definition of personal interests. And whether the deceased’s personality interests and personality symbolic monuments are applicable to the compensation for moral damage, it requires in the judicial interpretation, but the new law has not provided. Second, the main scope of the compensation for moral damage claims is fuzzy. On some special subject, such as if the vegetative state and fetus are ability to enjoy the spirit damages claims, it does not involve claims for moral damages. Such as a legal entity, which rather controversial subject did not give conclusive in the new law, but the judicial interpretation has been provided. Third, it is lack of an effective method to determine the amount of compensation for moral damage. Only refer to the six factors determine the amount of compensation in the judicial interpretation can not fully protect the victim of the legitimate rights and interests, and can not ensure judicial fairness.For these shortcomings, I propose the perfect proposal:First, to cite and summarize the scope of compensation for moral damage, and be clarified to the form of legal provisions. By these ensure legal consistency and comprehensive protection of personal rights and interests of the victim. Second, to clear the main range of moral damage compensation claims. Admit to a vegetative state in the spirit of the damages claim on the main qualification, and affirm and protect conditionally of the fetus’s interests in the spirit of the damages claim in the new law. Deny the corporate spirit of damages claims subject qualification and exclude in the main scope. Finally, proceed from reality, to explore and develop effective determination of the amount of compensation for moral damage. Be guided by the principles, and classify the consideration programs and calculate quantum. And then determine the specific amount of compensation for moral damage, in order to achieve the protection of victim personal interests and to ensure judicial justice of the legislative purpose.
Keywords/Search Tags:Moral damages, Compensation, Improvement
PDF Full Text Request
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