The Research Of Legal Issues On The Compensation For Mental Damage

In theory, two main doctrines exist for the definition of mentaldamage: narrowly and broadly. On the basis of comparative analysis, thescope of mental damage defined in this thesis includes the mentalsuffering and the loss and impairment of mental interests.As a legally fictitious entity, the right of reputation of legalperson is likely to be damaged by torts as well, which shall be includedin the scope of compensation for mental damage. It reflects the respectfor the personality of legal person when the legal person is granted theright to claim compensation for mental damage. The loss and impairmentof mental damage of the special nature persons, such as the person in coma,infant, the person with complete mental illness or the person in the stateof intermittent mental illness who lack sensing capability of suffering,shall be legally remedied rather than distinctively dealt with for theirtemporary or lifelong imperception and weak capability of perception.That the baby is granted the right to claim compensation for mental damagesessentially means a protection from the mental suffering or the loss ofmental interests which is likely or about to happen.The compensation for mental damage is not limited in the liabilityfor torts. In contractual relation, where the breach of contract causesthe mental suffering or the loss of mental interests to the performingparty, the performing party may claim the compensation for mental damagesas well as the liability for breach of contract. The civil claim forcompensation for mental damages shall be protected by law in the criminalcase, which is unreasonably prohibited according to the existing judicialinterpretation. There are a lot of issues in the accounting system of compensationfor mental damages: lack for legal provisions in the perfect system, vaguecriteria for accounting, and subjective circumstance which easily causesunfairness to the right of personality. In reference to the foreignexperience in the determination of the amount of compensation for mentaldamages and based on the demand of judicial practice in China, theprincipal shall be provided as follows: principal that comfort prevailswith supplemented punishment; principal of discretion; principal ofappropriate limitation. In view of complicated circumstances of mentaldamages, different economic conditions in different regions, thesentencing basis in the criminal procedure may be referred to when theamount of compensation is determined. The detailed scope of compensationmay be respectively established by each provision, autonomous region andmunicipality directly under the central authority as well as the systemof expert witness.