Research About The Calculation Of Disability Compensation In Personal Injury Cases

The principle of compensation which established in the ‘Personal InjuryCompensation Interpretation’ in China, is consistent with the one in United States tortlaw. It is the principle of full compensation. In fact, in China the final result ofcompensation can not reach the ‘full’ compensation. Under the ‘full-compensationprinciple’, the theoretical basis of Disability Compensation is ‘loss of ability to work’.When calculate the amount of Disability Compensation, however, using the‘categorization compensation’ method. Which will through the fixed compensationstandard and the fixed compensation period. The standard is ‘per capita disposable ofurban resident and per capital net income of rural resident on previous year in the areaof the court’. It is basis on the per capita income of the domicile. Not only completelyignores the difference of the ability to earning, which makes it fully equalization, butalso results the phenomenon of ‘the same life, having the different value between theurban and rural’.Chapter1provides a review of legislation on economic damages for personalinjury cases. From ‘General Rule of the Civil Law’ to the ‘Personal InjuryCompensation Interpretation’, focuses on the legislative changes on the range ofeconomic damages for personal injury cases. The most important point is ‘DisabilityCompensation’ and ‘compensation for death’. Other changes in economic loss will bebriefly mentioned.Chapter2mainly introduces the principle of tort damages calculation, the general calculating method and the current calculated method of personal injurycompensation in China. The basic principle is ‘full-compensation’. General method ofcalculation of damages for infringement can be divided into the subjective calculationmethod and objective calculation method. Generally speaking, because of personalinjury damages is closely associated with special personal factors, it should applysubjective calculation method. The personal damages calculation method in China,gradually changes from strictly objective calculation method, which applied by‘General Rule of the Civil Law’, to subjective calculation method, which applied by‘Personal Injury Compensation Interpretation’.Chapter3mainly introduces the system of Disability Compensation in China.Firstly, the nature of the Disability Compensation has been truly characterized asproperty damage, instead of being controversial before. Secondly, introduces the civillaw theoretical foundation of Disability Compensation, the ‘the theory of loss ofability to work’ is the most reasonable one, and also the one we apply now. Finally,focus on the calculation principle of Disability Compensation, calculation method andthe limitations of this method.Chapter4mainly introduces cases and rule about impairment of erning power inU.S. personal injury cases. Through some rules, about impairment of erning power, inthe ‘Restatement of Torts (second)’, introducing the basic concept about impairmentof erning power. Then, through some cases introducing the general rule aboutimpairment of erning power.Chapter5on the basic of U.S. Experience, provides some suggestion for theimprovement of Disability Compensation, including the reason why impairment oferning power standard (loss of ability to work) can not be applied in the juridicalpractice of Disability Compensation in China, the necessity of applying theimpairment of erning power standard, and some ideas to improve the DisabilityCompensation calculation system of China.s...