Research On The Compensation For Mental Damages In Traffic Accident And Value Orientation Of The Vehicle Compulsory Insurance

In road traffic accident, the injured third person who have become disabled or death ina car accident, himself/herself or his/her close relatives have the right to demandcompensation for mental damages in accordance with the Tort Liability Act or judicialinterpretation on compensation of personal injury released by the Supreme People’sCourt of P.R.C., in addition to demand the compensation of material damages. Sinceall vehicles have to be insured against third party compulsory liability insurance, theinsurance company will bear possible risks during their driving. The question ofwhether is the offender himself or the insurance company will become the ultimatebearers of compensation for mental damages have become more prominent. Anotherproblem derived from here is if the payment of mental damages compensation isburned by the insurer, then what is the relationship with the material damages? Whenthe120,000payment limits of vehicle compulsory insurance is insufficient to coverall the material damages and mental damages, which payment shall prioritize? Thisthesis attempts to rationalize the relationship between material damages and mentaldamages in the compensation of personal damages, based upon mental damages of thelaw of tort and vehicle compulsory insurance, the thesis analyzed and discussed the reasons for why the traffic compulsory insurance shall not be liable for thecompensation for mental damages, and put forward a feasible means of relief for thevictims in road traffic accidents who demand compensation for mental damages. Thethesis is consist of five parts.The first chapter describes the approach and current status of road traffic accidentwhen compensation for mental damages is demanded in our country. I selected fourcases which are more representative and cited them in the first section of this chapter,summarized the courts’ main attitude when dealing with such cases. In section II, Ijust found the reasons for differences in practice when handling such cases is that therelevant law is imperfect. Our country’s mental damages compensation system itselfhas not yet become mature, vehicle compulsory insurance system is implemented in2006, and there is no specific legislation in this field. All these overlays have lead tothe differences. Section III discussed both the pros and cons when the payment limitsof vehicle compulsory insurance is included compensation for mental damages, gavea brief introduction of the main attitudes in theoretical circles. Based upon ourcountry’s national conditions, the thesis put forward the view that the compensationfor mental damages should be excluded from vehicle compulsory insurance.The second chapter tries to make a value positioning for mental damages, on thegrounds of the concept of mental damages, and the legislation principle of the theoryof mental damages compensation. Section I discuss the relationship between mentaldamages and material damages, studying the origin of the mental damages based onthe theoretical development of damages from our country and other civil lawcountries. I just want to prove that our country does not recognize the indirect mentaldamages, and only when material damages is determined, can mental damages berecognized. Section II investigated the principle of legislation, legal doctrine andmainstream view for the compensation of mental damages in major countries. Ourcountry’s legislation should adopt this principle too. Section III try to analyze thatcompensation of mental damages is differed from the infringement act in road trafficaccidents since that the two concepts does not contain each other, but should beindependent. The third chapter talks about the scope of protection and value orientation ofvehicle compulsory insurance from the perspective of insurance law. Section I statingthat the vehicle compulsory insurance coverage has only provided the most basicprotection from the meaning and purpose of compulsory insurance. Section IIpointing that the scope of protection of vehicle compulsory insurance should notenlarge at will, because the current development status of the liability insurance is stillimperfect in our country. Section III tries to analyze the difference between vehiclecompulsory insurance and the third party commercial liability insurance. I gave a briefsummary of the development of vehicle compulsory insurance and the coexistsituation of both compulsory insurance and commercial insurance. And I want toclarify the scope of protection of them on the basis of their nature, thus to pave theway for relief talked in the following paragraph.The fourth chapter is about the solution of the problem, which talks about theremedies of mental damages for road traffic accident victims. In this thesis, I justintroduce two possible ways. The first is to add a new type of insurance, that is theadditional risks of mental damages, and it can be put in body injured insurance orcommercial third party liability insurance, which can be insured at the party’s will.Also I demonstrate its feasibility. The second method is that the compensation ofmental damages of the victims’ should be borned by the offender. We will identifywhether the offender should take his responsibility and what principles should befollowed based on tort elements. This method is applicable and has its positivemeaning, through which the legislative purpose of providing assistance for theprotection of victims put forth in the Road Traffic Safety Law can be achieved.