On Compensation For Non-pecuniary Damages In Tort Law

The theory that damages include non-pecuniary damages and pecuniary damages is international now. And non-pecuniary damages compensation system is getting more and more important. In contrast, our mental damages compensation system displays some disadvantages. Non-pecuniary damages are different from mental damages. Mental damages are exactly one pare of non-pecuniary damages. Besides mental damages, non-pecuniary still include physical inconvenience and discomfort, loss of amenities and expectation of life, loss of function and opportunity, reduce of social evaluation, social discredit and loss of social relationship, etc.In our legal system there are no non-pecuniary damages, instead there are only mental damages. As a result, the disadvantages are obvious. First, without the superior concept we’ll try to expand the connotation of the sub-concept to remedy the defects, leading to the indetermination of the sub-concept. As a responding to the judicial practice and time trade, scholars will propose more and more other kinds of non-pecuniary damages besides mental damages, forming a disordered damages system. Meanwhile, many other kinds of non-pecuniary damages couldn’t be compensated because they don’t belong to mental damages. In order to protect the injured legal benefit, it is necessary to conform the concept of non-pecuniary damages and expand the recovery of the damages compensation and compensation system. Meanwhile, there are many defects in specific legal provisions. First, the law doesn’t provide enough protection to direct injured, because we pay too much attention to the rights that the injured suffered, not the damages themselves. Second, regulars to close relatives’mental damages compensation claims are unreasonable, leading to understanding of its nature. Third, subjects who can claim mental damages compensation are too limited and rigid. For example, whether fetus and the brain severely damages can claim mental damages is not told in laws. Fourth, the law doesn’t give clear answer whether we can claim compensation when our general personality right is infringed. That non-pecuniary damages compensation system develops well shows the superiority of non-pecuniary damages compensation system. Only non-pecuniary damages concept is corresponding to pecuniary damages concept exactly, and non-pecuniary damages concept can recover many other damages that mental damages can not recover. Besides, non-pecuniary damages concept can applies to legal person. In order to learn the essence of non-pecuniary damages compensation system, improve mental damages compensation system and provide effective relief to the injured, we can practice in three ways. First, improving and expanding damages compensation system, which includes making non-pecuniary damages concept legal and confirming other non-pecuniary damages like pain and lower of social evaluation expect mental damages. Second, expand scope of compensation of mental damages with general personal right. Third, extending and adjustment subject of right to non-pecuniary damages, which includes expanding scope of compensation of direct injured such as the dead, fetus, brain severely damaged and legal person, and scope of compensation of indirect injured. As to the indirect injured, the subject shouldn’t be limited to close relatives any longer, and request sequence should be more flexible.