Research On The Compensation For Mental Damage In Criminal Incidental Civil Action

As civil mental right draws increasing attention in the modern society,Mental compensation becomes more and more important,making it an important duty for law to protect citizens'mental right from any infringement.In the realm of civil adjudication,China recognizes and supports any mental damage suffered by citizens,and the scope of application of compensation for mental damages tends to be expanded,but victims are not allowed to claim Compensation for mental damage in civil suit collateral to criminal proceedings.Criminal offenses including sexual abuse of young children and infanticide over the past few years have triggered strong social reaction.This has also,once again,brought forth the reflection and discussion on the issue whether or not compensation claims for being mentally hurt should be supported in criminal offenses.As a kind of activities undermining the state order and endangering The personal safety of citizens shall be severely punished according to law.In real life,this kind of crime not only damages the citizen's personal property and health,but also causes great mental damage to the victim or the next of kin of the deceased,so their mental right should also be protected by law.The goal of China's Criminal Incidental Civil Litigation System is to solve problems regarding criminal offenses and civil compensation.Emphasizing on the Criminal Incidental Civil Litigation System has become the new trend.The Criminal Procedure Law of 2012 and its illustration have given more details on the Criminal Incidental Civil Litigation System,making it easier to be applied in court.The benefits brought forth by the Criminal Incidental Civil Litigation System in court are as follows.First,it helps to save judicial resources.Second,it improves the efficiency of trials.Third,it helps in reducing the complaints made by victims.As a result,it becomes the option of the majority of victims.The Criminal Incidental Civil Litigation System that is currently in use has exerted positive influence in court.However,there has also been times when it was not used in the real sense or as good as it could be.This results in the failure in fully protecting the rights of the victims.Besides,there are conflicts between the system and other regulations in the field of civil litigation.All of these problems contradict with the requirements of protecting the basic rights of the victims and the expectation the public have for laws.Neither do they correspond to the justice and fairness that are supposed to be defensed by laws.Problems with the current Criminal Incidental Civil Litigation System regarding compensation claims for being mentally hurt are as follows.First,there is little consistency among the existing laws and regulations.To illustrate,the civil legislation and the criminal legislation conflicts with each other.Criminal claims affidavit civil claims is essentially a civil litigation,but it has to follow the procedures in the criminal litigation.As we can see,this might cause inconsistency and even conflicts between the law itself and how it should be applied.The right to make compensation claims for being mentally hurt is supported in China's civil law system,but only the right to make compensation claims for loss of property is supported in the criminal law system.In other words,the civil law system and the criminal law system holds completely different attitude towards the same issue.Second,the judicial interpretation of certain laws violates the law itself.To illustrate,in criminal trials,the judge usually bases his decision on criminal claims affidavit civil claims on the document[2012]No.21 "The illustration of How the Supreme Court Should Apply the Criminal Procedure Law of the People's Republic of China"(Hereinafter referred to as the "Illustration of the Criminal Procedure Law"),but in the regard of compensation claims for being mentally hurt,attitude held in this document conflicts with the one held in the 2010 "Tort Liability Act" even though the document is the illustration of"Law of Criminal Procedure".According to the legal rank,the "Illustration of the Criminal Procedure Law",as an illustration of the law,ought to follow the "Tort Liability Act" passed by the National People's Congress.However,in criminal trials,for criminal claims affidavit civil claims,the "Illustration of the Criminal Procedure Law" is usually the one that is referred to,which does not support people's right to make compensation claims for being mentally hurt.According to the legal rank,the "Tort Liability Act" should be the one that is referred to,but in criminal trials this often is not the case.This is contrary to the law.Third,the definition of compensation for disable people and compensation for death is ambiguous.This is shown in the two laws passed in 2001 and 2003,[2001]No.7 "The Supreme Court's Explanation on Issues Including People's Right to Make Compensation Claims for Being Mentally Hurt" and[2003]No.20 "The Supreme Court's Explanation on Laws Applicable to Issues Including People's Right to Make Compensation Claims for Physical Injuries".The former one defines compensation for disable people and compensation for death as mental loss,whereas the latter one defines them as property loss.In the case of criminal claims affidavit civil claims,the definition of compensation for disable people and compensation for death as mental loss is not supported in the "Illustration of the Criminal Procedure Law".These drawbacks and conflicts directly lead to the failure in fully protecting the rights of the victims in criminal cases and in realizing fairness in laws.For example,victims in sexual assaults often just get very little material compensation,which is not justified considering the serious mental trauma caused by the assault.Based on case study,this paper carries on elaboration by:?.Analyzing the typical cases of mental damage compensation claimed in civil suits collateral to criminal litigation.?.Outlining the concept and characteristics of mental damage compensation.?.Describing and analyzing the actuality of mental damage compensation in civil suits collateral to criminal litigation in China,including Legislation,judicial interpretation,judicial practice and related theories.?.Evaluating the development status of China's mental damage compensation system.?.Analyzing the necessity and rationality of enabling mental damage compensation in civil suits collateral to criminal litigation.?.Perfecting the proposal for legislation for mental damage compensation in civil suits collateral to criminal litigation by establishing a mental damage compensation system,and improving the national victim assistance system.