On The Compensation For Mental Injury In Criminal Cases

In recent years, the issue that whether the moral damage of criminal cases shouldbe supported or not has been increasingly fierce discussed. But the amendment of“The criminal procedure law of the people’s Republic of China," insistent cautiousattitude and not included in the scope of litigation. We think that this is not onlydetrimental to the airbus also a pity in the legislation. To build dual-mode involvingmoral damage compensation, are not only the requirements of the times, but also theneed for justice. The legislator should do that not only from the entities identified onlegislators "moral damage" and "civil rights" in nature, but also from the proceduresto be protected.However,because of the criminal nature involved in the technicalframework of existing legislation, the program can operate on a specific "dual track"to be built.Addition to introduction and conclusion, the article is divided into five parts,totaling two thousand words.Part I: Different approaches to practice. It cost a long time to discuss whether themoral damages claim should be supported or not in Criminal cases. And the judicialpractice is also very non-uniform; some courts even made a groundbreaking ruling,and achieved good social effects. Accordingly, the authors collected two cases tocompare and summarize practice some specific practices.Part II: Legislation is denied. Legislation is a negative attitude on that thecriminal cases of moral damage compensation claims are included in the scope oflitigation. However, this negative attitude is not entirely absolute, in some judicialinterpretation or local laws and regulations in the spirit of criminal cases, the right toclaim damage still has its space. To sum that mainly including the following threeaspects: firstly, the spiritual comfort in Traffic Accident Crime; Secondly, the "spiritof solatium"of the state compensation; thirdly, the come out of the CriminalReconciliation System. Such a negative stance on the legislation, making China’slegislation appears logical error, and there have been contradictory logic problemsamong the existing laws.Part III: Technically there are two different voices. Academia emerged verydifferent voices about that whether the moral damage of criminal cases should besupported or not in Criminal cases. A voice said:” moral damage" should not beincluded in the trial areas. This theory should be denied on procedure and entity. Thesecond voice, that would make "moral damage" included in the trial areas positively.Accordingly, there are two modes on protection of the "litigious right": First,the"parallel", the second is "separate." For the "parallel” type of litigation should notbe a simple model adopted, for the "split" mode is inadequately adopted for thecurrent China’s actual situation.Part IV: Useful reference of foreign legislation. Legislative action supports it intothe range. Currently, increasingly people critics that the right to claim for moraldamages in criminal cases are not supported when some foreign countries haveaccumulated rich experiences us can draw. Whether civil law or common law, there isa very consistent approach about the right to claim moral damages in criminal cases:the support of criminal cases in the spirit of the damages claim included in the scope of litigation, and has regulations in litigation mode, which mainly includes two modes:one is separate, the other is parallel type. These beneficial practices are worthy of ourlegislation reference.Part V: Proposed legislation perfection.Throughout the world trend, it hasbecome an inevitable result of the development of private rights and demands toinvestigate criminal violations of the human spirit liability for damages and protectthe right for compensation of the victims. Along with the improvement of China’seconomic and social progress, personal protection of criminal victims should be faced.For that the right to claim for compensation for moral damage litigation mode settingsin criminal cases, the countries in the world have been actively exploring, theoristsalso put forward their own views. To effectively solve the contradictions andproblems which is the implementation difficulties of property aspects of the criminalcases and the requirements for shortcut criminal cases, in balancing social interests ofthe premise, for the setup of the right to request compensation for moral damage incriminal cases, legislation can be taken into account "dual track" mode principally:taking "parallel" litigation mode in principal, but it can only take "separation" inexceptional circumstances. That is to say that in the spirit of criminal cases, the rightto claim for damages in the criminal incidental civil action can be lifted; you can alsobring a civil action separately in principle. But for special cases, you can only file alawsuit in accordance with the law.