Study On Compensation System For Mental Damage In China

The announcement of the General Principles of the Civil Law is the firstmilestone in our personal rights protection by compensation for mental damage.General Principles of the Civil Law provides that citizens and legal persons shallenjoy personal rights, at the same time when the violation of the legitimate rightsand interests, they can get legal relief by compensation for mental damage. But thereare many shortcomings for the provisions of personal right in General Principles ofthe Civil Law. On the one hand, there is no legislative protection of privacy, the rightto personal liberty，sexual autonomy of the specific personality right, which leads tothe provisions of the concrete personality incomplete; General Principles of the CivilLaw does not provide for the general personal right, making the provisions notcomplete. It only provides the right to human dignity under the defamation; and thereis no provision for rights related to the person. On the other hand, although GeneralPrinciples of the Civil Law provides spiritual compensation protection of the right ofpersonality, it is not clear that how it works in practice. The judicial interpretation forGeneral Principles of the Civil Law made by the Supreme Court is the secondmilestone in our personal rights protection by the compensation for mental damage.At the same time, the judicial interpretation extends the scope of some property withpersonhood rights, besides provides the details for applicable condition andapplicable rules and sphere of application of compensation for mental damage;specifies the factors that should be taken into account to determine the compensationfor moral damage; Judicial interpretation enhance the legal protection for personalrights. However, these provisions are principled terms, which is not conducive to usein judicial practice.At present, there is no uniform and clear legal provision for the questions aboutcompensation for mental damage. Judges use discretion to give judgments. Injurisprudential circle, scholars and professors discuss this issue for long time, but have not yet to form a widely accepted, scientific and practical theory. At the sametime, there are the characteristics that diversity and immeasurability make it difficultto use in the criminal proceeding. In this paper, the writer makes comprehensiveanalysis about relevant domestic theory and typical cases, and draw lessons fromforeign principles and methods of determining the amount of compensation formental damage. Finally, the writer give some opinions that how to improve ofcompensation for mental damage. These views may help to solve this problem andpromote the protection of compensation for mental damage in respect of personalrights in china.