The Research On Mental Damages Compensation In State Compensation

The State Compensation Law has undergone from the scratch to the gradual improvement. With its continuous reform the system of the state compensation is experiencing the preliminary audit to the system that can meet the public opinion. But the spirit of the system, which is in its infancy, needs to be perfected. The law declares that the compensation needs to be paid if the spiritual damage happened, and it also defined the conditions of the compensation, which are firstly appeared in the law. However, the standard of the compensation is not clear. In this thesis, the author makes a brief explanation to the standards from the view of the default of the system, the constituent elements, and the scope of the compensation. The corresponding suggestions are listed as well in the thesis. The author would like to share some new ideas by focusing on the improvement recommendation of the compensation, taking the experts’views as refer.The author analyzes and studies the state compensation system by taking the requirements of the spiritual compensation as entry point. The wealth can be divided into material wealth and the spiritual wealth. Similarly, the damage can be divided into subjective physical damage and the objective mental damage. For example, the violation results maybe in the death of the victims, and then the relatives of the victims will suffer from deeply soreness, maybe results in the long-term restricted freedom of the victims that will cause the depression and the pain to the victims, maybe results in the victim’s disability that will have victims suffer from the all sorts of mental torture certainly not eliminated.The establishment of the spiritual damage compensation system in the State Compensation Law, to a certain extent, is the mile stone in field of the spiritual compensation. However, these rules of this law is not completed, which results in the problems that request body is single; the scope of the compensation of the damage is narrow; and the definition of the "serious consequences" is not clear. This law is still on the process of the perfection. The problems concerning to the practice of the law like how to calculate the amount, who will calculate based on what kind of the standards and what difference is between different districts are not clearly defined. The standards to the mental damage compensation are not clear that will directly affect the quality of the legislation and the quality of serving the perple.In reality there are lots of the mental damage cases like She Xianglin, Zhao Zuohai and Ma Dandan virgin prostitution and other similar cases that is legal but unreasonable and in which the victims suffered from the serious mental damage but didn’t get any compensation. In some cases, the court even rejected the request for the compensation because of lacking legal basis. These cases that make all the people who is not familiar with the law be confused or even feel incredible reminds people that the imperfection of the spiritual damage compensation system will bring the victims more serious damage. Therefore, we should understand that in order to have better protection and respect for human right, the establishment of the compensation system in the State Compensation Law is essential. We have to do something to improve the system to perfection.From our years of implementation of the State Compensation Law, it seems that there are still some limitations of this law, which needs to be further improved and perfected. For example, the scope of the existing provisions should be broadened. The compensation program is not scientific, and there are lots of loopholes of the system that should be more scientific and reasonable so as to reflect the real spirit of convenience. The amount of the compensation in the existing provisions is too cheap. It is necessary to improve timely to reflect the values and ideals of humanism. From the point of view of the process of implementing a law, any announcement is not perfect from the birth. They experienced a step by step progress and were gradually strengthened. Development time of the State Compensation Law is still very short, especially for the mental damage compensation system that still needs long term to meet the perfection. And from the view of China’s current development process of the rule of law, the spirit of the compensation plays an indispensable role in our country. Under the appeal of many scholars and experts for many years, the spirit of the compensation was finally written into the national compensation code. This new system’s establishment makes the progress on the human rights protection in China.The author sets up this thesis from five aspects with the purpose of the relatively complete discussion for the state compensation for mental damages. The first aspect is to clarify several concepts of the thesis. This article will introduce the basic concepts related to the mental damage and the basic characteristics of the state mental damages. The second aspect is to identify the legal basis of the presence of these basic concepts:why the system should be proposed and what content of the society is reflected by this system. Then in the third part, the author discussed about the national compensation for the damages in other countries and regions by learning the experience and picking up the defaults. Taking these experiences as refer, the author indicates the defaults of our spiritual compensation law. We can only find the best solution by finding out the real reasons like what is the key trend in the society and what caused these problems. Finally, the author would like to give some comments and recommendations to improve the spiritual damages compensation system in the state compensation field.