On Perfection Of The Mental Damage Compensation In The State Compensation

In2010,the revised State Compensation Law bring the spirit damage compensation into thenational compensation scope in the first time,it is the reflection of the nation’s respect andprotection of human rights embodied,and it is better to maintain the spiritual rights of thecitizen.However, due to starting lately,compared with the foreign law and domestic civilspirit damage compensate, the current research of the national compensation system forspiritual damage of our country is still at the primary stage.The regulations of compensation for mental damage is too general.In the applicablestandards, it ordains only "serious consequences" and has no explanation or lists, givesjudge a huge space of discretion, this condition go ill with the obligee’s right relief, and isalso easy to cause the juridical uniform and the judicial corruption.The scope ofcompensation is limited to the right of life and health and the right of personal freedom, itdoes not conform to the reality of social development and essential protection of the rightsof citizens.The Standard of compensation is not mentioned, the traditional "comfort" cancontinue to be used or not, how the specific amount of compensation calculation, are all theproblems need to face to and solve.We must improve the state compensation for moral damage compensation system.Firstly, itis need to expand the scope of compensation, including the substantial right of personality,mental right of personality, the specific identity rights and property rights.Secondly,it isneed to clear the applicable standards, under normal circumstances the victims,death,injured, suffering from mental illness belong to serious consequences, but the nature of theright of different against standard should not be the same, the provisions of "seriousconsequences" situation should based on rights,providing clear guidelines for judicialpractice.Finally, it is need to determine the compensation standards, it should insist on aprinciple that give priority to compensation and punishment id complementary, it should noless than the civil compensation but be limited, it should distinguish different types offairness but take account of fair, it should make specific quantization according to theindividual cases.