Discussion On The Problems Of Mental Damage Compensate Of The Third Party On Personal Injury Cases

After the occurrence of a tort, in addition to the direct damage caused to the infringed, it often leads to a third person to suffer damage which not only in property but also in the mental level.The mental damage of the third party refers to the Non-pecuniary damage provoked by a tort which cause the person,who is no direct infringed, to suffer pain and misfortune. According to the spirit of Tort Law of China and the relevant Judicial Interpretations, the close relatives to the infringed has the right to claim damage when the direct infringed is dead due to the tort. However, there remains controversies in respect to the application of relevant rules in the judicial process, which include: the ambiguous scope of the subject of claim right, the method to handle the indirect victim mental damage compensate in accordance to different formations of infringement. The rationale of the aforesaid circumstance due to the absent of unified conclusion concerned the nature of the indirect victim mental damage. This article intend to, in the purpose of fully relieve the aggrieved party, take this issue as a start point and interprets relevant rules based on the comparison of the related institution in the main countries between civil legal system and common law system.Thus, this article can be divided into the following parts:The first part of this article mainly reveals the overview of the compensation system of the mental damage compensate of the third party, which including certain problems regard to the general situation of the legislation and the judicial process in practice area. In addition, this part contains the discussion of the nature of the damage aforementioned, while in German law and American law which incline to deem the damage hereof as a direct damage base on the standard of the infringed rights and interests which caused by tort incident in the normal situation, in other words, that the third party shall be deem as suffering the direct damage in the other independent relationship in stead of being pertained to the legal relationship of the direct victim of the tort, therefore shall prove the essential elements of tort by himself/herself. Nevertheless, UK law and Japanese law use the occurrence of tort action as the standard which incline to consider the damage hereof is an indirect damage, in other words, the damage consequence of a tort will be extend to the third party and the essential elements of tort to the third party shall be limited within the essential elements of the direct victim, this viewpoint, in fact, break through the principle which is the relativity of debt. Besides, although the third person may not bear the burden of poof regards with essential elements to establish the tort liability except the damage suffered, he/she shall bear the contributory negligence of the direct victim.The second part of this article involves the dispute and clarification regard with the subject of compensation claim right of the mental damage compensate of the third party. First of all, this article roughly divide the legislative standard into two classifications, through a brief study into the cases and judicial adjudications in other countries, which include the formal standard whose core is the kin relationship and the substantial standard whose core is the emotional relationship, and render a comparative analysis between these two standard hereof. Secondly, combining with the dispute in respect of the qualification of the subject of claim right in judicial processes, we can clarify two following aspect :(1) The limit of the sensory ability of the reflective damage consequence shall not be the ground to deny the qualification of the subject of claim right due to the objective criterion can be applied in the identification standard of suffering. Thus persons who lacking of sensory ability may have a comprehensive protection;(2) The reasonable interpretation concerned with the conception about “close relative” in the judicial practice shall be necessary. For the right of claim which could be proved by evidences that the relative is de facto in distance relationship with the direct victim, the court may no support the claim, instead, the court may support the claim and render the compensation for his/her damage by means of extensive interpretation while the third person who has been proved to have a intimate relationship with the direct victim but without legal or kindred relative kinship.The third part of this article mainly discusses about the infringement formation of the mental damage of the third party. Proceeding with the legal effective raises from the judicial practice in the Tort Law of China and the relevant Judicial Interpretations, then base on the comparison of legislative cases in other countries and combine with the discussion vis-à-vis the nature of the mental damage of the third party abovementioned, this article intends to divide the infringement formation into the fatal incident and the non-fatal incident, and discuss both formation separately and bring out the remedy solution of damage hereof afterward. This article considers the damage to the third person in a fatal incident as the indirect damage, which may directly invokes legal provisions. As for the damage caused by the “injured circumstance” in a non-fatal incident, the third person may provoke a independent right of claim based on the reason that the damage result has caused infringement to himself/herself, which can be considered as a direct damage. In addition, except directly invokes legal provisions to claim removal of the custody when a tort involving infringes “identity relationship” of the third party in a non-fatal incident, the compensation in respect with the“sexual right”which raises from one of marriage spouse may be treated in the method of the non-fatal incident.The forth part of this article is concerned about the improvement of the mental damage compensate of the third party system in China. To begin with, in respect with the subject of right of claim, the judicial practice shall affirm the claim right of the subject who lack of sensory ability including but not limited to fetus, infant and person limited in disposing capacity, and replaces the current kinshipism by emotion-relationshipsim in the circumstance that simultaneously gives the third person who has the intimate relationship with the direct victim and suffer actual non-property damage while denies the claim right of whom has a distance relationship with the victim hereof.Moreover, although the third person may have the right to claim indirect damage by directly invoking legal provisions in a fatal incident, the court shall support the compensation claim right. If the third person claims the infringer caused independence damage to himself/herself, and able to establishes the essential elements of the infringer’s liability.Furthermore, while the legal provision of the mental damage of the third party proscribed by Tort Law of China still be restricted within the circumstance concerned the death of direct victim, however, following the studying of the aboard legislation and recent Chinese judicial adjudication, the scope of such damage may be gradually extended to the serious damage including but no limited to the infringement of victim’s healthy right and identity right, which result from other non-fatal incidents. In the case of the damage caused by “injured fact”, the court shall deny the claim right of the third person in accordance with the attitude of current legal system in principle; as for the damage caused by “injured circumstance”, the court may determine the damage of the third person as direct damage, and the third party shall present the evidence to prove the establishment of the tort liability.