A Study On The Issues Of The Death Compensation

The right to life is the most basic right enjoyed by every citizen, and it is aprerequisite of the existence and exercise of all other rights. To respect life is not onlya moral demand of society for every citizen, but also a legal obligation as well. Theperpetrator who has led to another people’s death should be punished accordingly;because his fault not only led the victims lost their lives, but also forced their relativesconfronting with the loss of property and mental anguish. Such kind of punishmentcan make sure the legal remedies and the practical legal protection for the interests ofthe victims come into reality. Through this compensation, the interests of the victimsand the offender can be balanced and social stability achieved. After years ofdevelopment, our country’s death compensation institution has formed its basicstructural system, there are still some problems to be resolved. So under thiscircumstance, the research of the death compensation institution is of greatimportance. From the General Principles of the Civil Law of the People’s Republic ofChina (hereinafter referred to as the "Civil Law") to the Act of the Tort Liability Lawof the People’s Republic of China (hereinafter referred to as the " Tort Liability Act "),Although the current laws, administrative regulations, judicial interpretations, andmany other legal documents have made provisions on the death compensation, theregulations mentioned above are not perfect concerning the nature, subject, scope,calculation mode and many other aspects of the death compensation system. In thecomplicated judicial practice, people are not sure about how to understand the natureof death compensation, how to define the right subject to request this kind ofcompensation, how to determine the scope of compensation, and how to calculate thecompensation with the proper mode. Huge controversies are in our way to solve theseproblems, both in theoretical and practical areas.In view of this, on the basic of examining the historical development of theparticular system, the legislative status quo of the death compensation system inChina, and the foreign legal provisions as well, it is easy to see that the concept of thedeath compensation refers the amount of money the offender gives to the victim’s relatives to maintain the material life standard before the victim’s life was taken bythe offender’s fault. The death compensation is different from the compensation fordeath, the later is only a part of the death compensation. Although our legaldocuments have come up with such different description as death compensation fee ordeath compensation, essentially they are the same. Death compensation is a remedyfor the property damage, and it is different from spiritual compensation. The victim’sclose relatives have the right to exercise the compensation, also the scope of the"close relatives" should not be limited to the specified range in the Supreme People’sCourt views on the implementation of the General Principles of the Civil Law of thepeople’s Republic of China (hereinafter referred to as "the opinions"). Acorresponding expanded explanation should be made, which means that the familymembers who lived together with the victim for a long time should also be included.And when close relatives request their rights, a certain order should be followed. Thefirst overall and those dependents that had long-lived together with the victim shouldhave the priority of exercising the right. Under the circumstance of the lacking of thefirst overall, the second pick in order may request his right. In the special case of theabsence of close relatives, the procuratorates should act as the request subject.Through this order, the system of right request subject has been improved. As thescope of the death compensation, both "the inherited loss theory" and "the dependentsloss theory" have shortcomings. We should take the theory demonstrated as "tomaintain a certain level of material life". This theory believes that the living expensesof dependents differ from the death compensation; the former is being included in thelater. Our calculation standard for the death compensation should combine the typedone with the individualized one.