On The Compensation Mental State Compensation Of Damage

The newly revised "State Compensation Law" has introduced spiritual damage into the national compensation scope, which is a great progress in China’s construction of rule of law, making people’s spiritual interests have a more comprehensive security. However, it is a heavy burden and a long road to improve the compensation system of mental damage in state compensation in China. In judicial practice, because of the principle and abstract provisions, it is very difficult to put the system of compensation for mental damage in state compensation into practice. According to the status of legislation and judicial practice of mental damage compensation system in China, combing with the research results of Chinese and foreign law, in-depth analysis of the national compensation system of our country, this paper puts forward views and ideas to improve the state compensation for moral damage compensation system of our country.In addition to the introduction and conclusion, this paper is divided into four parts:The first part introduces the basic theory of compensation for mental damage in state compensation. Firstly this part explains the concept and elements of the system of national compensation, which is the basis of the system perfect in the fourth part. Next, this part analyzes the characteristics of mental damage and highlights the difficulty of system improvement. Further more, this part compares compensation system for the spiritual damage of national infringement with compensation system for spiritual damage of civil tort. Finally, this part clarifies the significance of China’s compensation system for mental damage introduced into new "State Compensation Law".The second part has a comparative analysis of the relevant system in some typical countries of the two legal systems, to provide reference for perfecting the system of our country. The third part analyzes the status and shortcomings of mental injury compensation system of state compensation in China. It is provided in "Article thirty-fifth of State Compensation Law" that:" if giving rise to mental injury, the infringer should eliminate impact, rehabilitate and apology for the victim within the influenced scope of the infringement; if causing serious consequences, the infringer must pay considerable distress for the spiritual injury." However, owing to the social, cultural, economic and other factors, the system of state compensation for moral damage in our country just present budding, lacking of practical experience, the system itself still exist a series of defects, such as the use of some words similar to the "serious consequences","appropriate" and other fuzzy terms, which make the system be difficult to become a "living law".The fourth part puts forward related suggestions to perfect the system from the aspects of applicable standards, compensation scope, compensation standard, etc. Due to the particularity of mental damage, formulating a system as property damage compensation system in a short period of time is impossible, but the provisions are metaphysical too much and lack of operability. If having no further refinement, the system of compensation for mental damage in state compensation will cease to exist except in name.