Study On The Factors Of Determining The Consolation Payment For Mental Damage In State Compensation

In 2010,the State Compensation Law was revised to take the compensation for mental damage as a way of state compensation.Because of the supplementary and soothing nature of the mental damage relief fund,the amount of the mental damage relief fund in judicial practice is generally low,so it is difficult to play its due role.At the same time,in determining the specific amount of comfort money,we should focus on which factors,which factors have little impact on the amount of comfort money,and there is no scientific conclusion.It not only brings difficulties to the determination of comfort money in practice,but also causes social justice problems due to the different evaluation standards of comfort money.First of all,this article first analyzes the legislation of the central and local level in China.Through sorting out the relevant provisions,it is found that neither the compensation standard nor the consideration factors of the comfort money are clear in the form of law.In 2014,the opinions of the Supreme People's Court on Several Issues concerning the application of compensation for mental damage by the compensation committee of the people's court in the trial of state compensation cases was issued,which clearly determined the specific factors for determining the amount of relief money and provided reliable guidance for determining the amount of relief money for mental damage in state compensation in practice.Some provinces and cities have also made specific provisions on the compensation standards and consideration factors of the spiritual damage consolation in the form of meeting minutes and guidance.Comparing the relevant provisions of the central and local governments,we can find that there are many differences between them in consideration of factors,which is one of the root causes of the difficulty in determining the amount of consolation money in judicial practice.At the same time,from the perspective of judicial practice,we sorted out the mental damage compensation cases in 2011-2018,and made clear the year-on-year changes in the number of mental damage compensation cases in this period.Based on the case data,it is found that the compensation rate of mental damage compensation is low,and the proportion of mental damage compensation to personal freedom compensation and life and health compensation is not high.In addition,the paper classifies and arranges the factors mentioned in the judgment document to determine the amount of the mental injury relief fund,explores the application of the specific factors in practice,and explains these factors from the perspective of the victim,the infringer and other objective factors.These common factors are consistent with the provisions of the opinions.While judicial practice skillfully applies common factors,it ignores the influence degree of atypical factors on compensation for spiritual damage of the claimant,and there are few cases considering atypical factors.The lack of consideration on the individual of "human" and the neglect of individual differences lead to the lack of comprehensive and objective identification of mental damage.Then,the relationship between "mental damage" in the field of state compensation and "mental damage" in the field of psychology is demonstrated.Through comparative analysis,it is found that the mental damage in state compensation and the mental damage in psychology are interlinked,and the mental damage in psychology is also called "mental damage".Therefore,the state compensation cases to determine the mental damage of the claimants can refer to the psychological identification of "mental damage" related situation.According to psychology,the psychological status of the research object usually considers the individual characteristics of the object,such as age,marital status,disability level,education level,etc.,which is the atypical factor of the amount of comfort money in the field of state compensation.From the results of the research data,different individual characteristics do have an impact on the psychological status of the subjects,and there are not a few individual characteristics that have an impact.We should pay attention to the influence of these atypical factors on the compensation of spiritual damage when determining the amount of state compensation.Finally,draw lessons from the relevant provisions of the system of compensation for spiritual damage in civil tort.There are some differences between the consideration factors stipulated in the interpretation of the Supreme People's Court on Several Issues concerning the determination of the liability for mental damage in civil tort and the provisions of the opinions.State compensation does not take into account the "infringer's profit situation" and "the economic ability of the infringer to bear responsibility",adding the "average living standard of the claimant's place of residence".From the point of view of the labor remuneration of criminals in China,the equivalence between labor and remuneration has not been realized.In this regard,it should be limited to bear the benefits of the state.From the perspective of China's current economic development level and financial compensation ability,the economic ability of the infringer to bear the responsibility should not be the consideration factor for the determination of the compensation for mental damage.Limited consideration should be given to the differences in regional living standards,and the "one size fits all" compensation mode should be eliminated.This paper introspects and reconstructs the factors that should be considered in the determination of state compensation for mental damage,makes clear the necessary factors that need to be considered in the determination of state compensation for mental damage,and based on the conclusion of psychological research,determines the individual characteristics that have an impact on the spirit of compensation claimants,so as to provide reference and guidance for judicial practice.However,at present,the individual characteristics considered by the psychological research institute are not comprehensive.How to determine the standard and reasonable amount of mental damage relief fund with the victim as the center and the consideration factors of relief fund needs further theoretical research and practical exploration.