| The institution of third-party mental impairment claim derived from the Anglo-American case law system and gradually became an adjudication principle out of judicial precedents. Although China has been learning from the Anglo-American case law, the Tort Liability Law formally practiced in 2010 does not cover the third-party independent claim on mental impairment induced by infringement acts. In other words, the Chinese law specifies the direct victim of tort, while neglecting the possibility of an indirect victim. Although false and excessive lawsuits were taken into account in the law making of the Tort Liability Law, an increasing number of third-party claims took place but in vain. Is it true that only the direct victim is adversely influenced by infringement acts? For example, childhood witness of a car crash may bring lifetime fear, which is no less severe than the damage of the direct victim. Trials of such cases, however, do not seem to bear out the presumption. On one hand, the third-person independent claim of mental impairment compensation is yet to be confirmed; on the other hand, its definition and scope are controversial. In view of that, the author collectively uses domestic cases and the Common law precedents and judicial principles to elaborate on the issue on the basis of the Nervous shock.The first part of the article is to illustrate third-party mental impairment claim and related concepts. Chinese scholars are not in consensus about the notion, which evolved from mental impairment and subsequent mental impairment compensation. There are substantial justifications, both theoretically and practically, for the third-party.The second part is to examine pertinent regulations in the Anglo-American law system. In the US, the compensation is divided into two kinds: intentional or reckless impairment and negligent impairment with respective constitutive requirements. The development of the claim institution parallels the Britain-proposed reforms concerning the Nervous Shock. In handling cases, British and American courts demonstrate comprehensive considerations of all factors, such as behavioral freedom, rights protection, premium increase, suing cost increase, the probability of the judge misusing his or her power, etc. On the theoretical foundation of the third-party claim, the Shock Attack theory is analyzed in terms of its origin and development, and different rules are formulated on the basis of plentiful cases. The liability confirmations for direct and indirect victims are theoretically discriminated, with a few cases discussed. This part interprets the theory, using British and American judicial precedents, and examines the legal environment and culture to approach the original theoretical background for a better understanding of the nature of the theory.The third part is a comparative study of the Chinese regulations on close relative mental impairment compensation and the third-party mental impairment claim in Anglo-American law. The status quo of China is that only a similar law applied for close relatives exists. Given the few cases of third-party claims, China has gradually sensed the significance of third-party metal impairment compensation in daily trials. On that account, the author analyzes China’s status quo, summarizes the existing problems in today’s system, and raises questions to answer in the following part: a systematic illustration of the construction of the institution of third-party claim.The fourth part centers on the construction of China’s institution of third-party metal impairment claim. Three theoretical solutions are first stated, and subsequently, solutions are proposed to the four issues as presented in the third part. The Anglo-American law is taken for reference: the construction should be grounded in specific provisions along with the collaboration of pertinent systems and theories. This part elaborates on the development of a conceptual claim system applicable to China based on the Anglo-American law. |
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