Research On The Components Of Liability Of The Nervous Shock Of The Third Party

The third party suffering from nervous shock of accidents can claim for compensation for mental distress as the direct victim via tort suit.From the perspective of jurisprudence,they should be entitled to claim for damage compensation.From the perspective of the tort law of the People's Republic of China,it depends on four components whether and when the third party can ask the tort-feasor to bear the tort liability: his civil right and interest being infringed,suffering a serious mental distress,causality existed between torts and damage,and tort-feasor's fault.The nervous shock of third party is direct damage,which is different from the mental distress of close relative suffering from victim's death in the Article 18 of tort law.It is mental interests that is being infringed which is included in the Article 2of tort law,rather than the rights of status or to health.It is possible to explain the nervous shock of third party through mental interests,and useful to emphasis on his subject status by relegating the third party to direct victims.Furthermore,it avoids the request of mental disease which is necessary to constitute infringing health right in German Law and English Law.The boundary of spiritual interests is blurred and difficult to judge,which will give the judge too much discretion in practice.Therefore,it is necessary to restrict through the seriousness of mental distress,causality and fault.Only when all these components are met,the third party can file a tort suit.Mental distress has a strong subjectivity,thus it is very easy to be disguised and exaggerated,which may lead to indiscriminate expansion of mental damage compensation,so it must be adjusted.Reflected in the Article 22 of tort law,you can request compensation for mental distress only when resulting in serious mental distress.In judicial practice,the plaintiff should be determined to meet the seriousness of mental damage if he proves that he has been clinically proven to have mental or physical illness.In addition,in determining the seriousness of the third party's mental distress,courts may exercise discretion in the context of the particular circumstances of the serious mental distress specified in the local guidance.if the third party's damage is included in the particular case or its severity is comparable,it should be determined to be in line with the seriousness of mental distress.The causality can be determined when the third party haves a close relationship with the victim and sees or hears the scene when the accident happens(Simultaneous knowing).The victim need not die or be seriously injured.A close relationship is necessary because of pragmatism considerations and the requirements of adequate causation.It refers to close relatives in Chinese legal system,including spouse,parents,children,brothers and sisters,grandparents,grandchildren,in accordance with the provisions of Article 12 of the Opinions on Several Issues concerning the Implementation of the General Principles of the Civil Law of the People's Republic of China.However,the close relationship is not certain.The presume based on close relatives relationship can be reversed by the contrary evidence,that is closely related to the essential elements of the emotional ties.Simultaneous knowing is to ensure that the damage is predictable and limit the defendant's liability.Firstly,the plaintiff must be in the scene of the accident or being able to know the accident within the physical range when the accident occurred.Secondly,the plaintiff must be directly aware of the accident by himself,and can not be indirectly informed by others.The way of knowing is not limited to seeing,hearing or touching the occurrence of an accident is allowed,but in this case the objective environment must be able to make the plaintiff determine the identity of the victim,and the plaintiff must be able to personally feel the important aspects that the victim may suffer damage.With regard to the subjective fault of the tort-feasor,when the third party haves a close relationship with the victim and sees or hears the scene of the accident,the risk of being infringed should be considered to be reasonably foreseen by the tort-feasor,and therefore he has a subjective fault.