Research Of The Compensation For Mental Damages In The Compulsory Traffic Accident Liability Insurance

Since the compulsory traffic accident liability insurance came into effect,China has reached a new height in the relief of traffic accident victims.Because it provides a stronger institutional support to protect their rights.However,due to the lack of clear definition of the nature of our compulsory traffic accident liability insurance,there are many different viewpoints in the academic community,including compulsory liability insurance theory,mixed insurance theory or basic protection theory.The different legislative status of our insurance will directly affects the construction of the insurance and related system.Therefore,we should clarify its nature at first.At the same time,there is a dispute about whether the compensation for mental damages should be applied to the compulsory traffic accident liability insurance and how it would be applied to the insurance.The compulsory traffic accident liability insurance has a special legislative purpose,which is different from the general liability insurance,makes it difficult to combine the compensation for mental damages and the compulsory traffic accident liability insurance in theory and practice.There is a long history of the compulsory traffic accident insurance in Japan,United States and Taiwan.Compared with them,the Chinese insurance has only been running for more than a decade,and there are still some shortcomings that need to be improved in practice.Both in theory and in judicial practice,there are fierce controversy about the compensation for mental damages in the compulsory traffic accident liability insurance.On the one hand,our law strictly limits the subject of claim for mental damages,which will make some victims suffering from mental damages have no right to file lawsuit to protect their rights.The typical situation is when a husband suffers from a traffic accident and causes sexual dysfunction,whether his wife could have right to file a lawsuit for mental damages because her "sexual rights" was violated,or whether the parents have the right to claim compensation for mental damages because their children are handicapped by traffic accidents.In addition,although our country does not have relevant judgment of "reflective damage",but there are many cases in other countries,and academic community also have many different points,so it is necessary to discuss this issue in the thesis.On the other hand,there is a dispute about whether the criminal victims have the right to claim for the compensation for mental damages.As a kind of special tort,traffic accident not only relates to the civil tort liability law,but also refers to criminal law.However,the criminal law of our country clearly denied the victims’ mental damages.And in practice,courts also have different judgements on the compensation for mental damages of victims in traffic accidents which involving criminal offences.Japanese civil law stipulates the scope of application of the compensation for mental damages,and develops a series of compensation calculation standard in practice,which makes traffic accident victims’mental damages can be measured clearer and more specific.Moreover,the claim of close relatives of the victim has been accepted in practice.On the basis of other countries and Taiwan’s experience,we can make a more concrete and feasible system of the compensation for mental damages by extending the scope of the subject of the claim,completing the certification standards of mental damages,and making clear of the claim right of victims of the compensation for mental damages in the criminal offences,which can provide strong institutional support for the comprehensive protection of traffic accident victims.