Purely Emotional Distress On The Common Law

Traditional Anglo-American tort law tend to take the mental damage as the consequence of physical harm to the extent that mental damage was in a unclear state.In modern days, with increasing emphasis on human mental health and peace, in judicial practice,separate spiritual interests began and gradually increased to an action for damages. The people began to realize the invisible mental distress with tangible physical damage as intolerable, mental distress can stand alone as the cause of action to seek compensation. Thus, the court abandoned the mental damage as incidental practice causes of action, purely emotional distress gradually become an independent compensation for moral damage type. At the same time, out of concerns about the "action flood" common law countries have been cautious about purely emotional distress. The scope of purely emotional distress has been gradually expanded, but a variety of restrictive rules is also constantly being improved. The problem of how to find a balance between victims’ right and freedom of action is always accompanied by purely emotional distress compensation system development process. China,since the enactment of the "Tort Liability Act",for emotional distress protection, a major leap from the right to the interests has been taken. And that is consistent with our legal tradition, also has adapted to the development trend of the times. But we should also see, the provisions of the "Tort Liability Act", on the emotional distress is a little careless, many details of the problem dose not involved, so as to the lack of a clear legal basis for the judge in deciding a case. This issue, the legal profession in China is actively strive to improve. The jurisprudence experienced, detailed and comprehensive purely emotional distress compensation system obviously deserve serious study. This article is divided into five parts:The first part is the comparative analysis of home and abroad for the different views on the expression and the meaning of purely emotional distress, and further analyze the characters of purely emotional distress; The second part is concerned about the "Nervous Shock" system on English law, through the analysis of the nature will be attributable to purely emotional distress compensation system, exploring its development process through the typical case; The third part classified the purely emotional distress on American law into intentional and negligent, compared to examine the constituent elements and the restrictive rules; The fourth part is to introduce the legislative and judicial interpretation of China’s emotional distress, as well as the specific content; The fifth part compares the purely emotional distress compensation system on Anglo-American tort law and the emotional distress system of China to bring up the writer’s points of whether China should absorb the purely emotional distress and what can we learn from this system.