A Research On The Determination Of The Amount Of Compensation For Mental Damage

With the rapid development of social economy,citizens' awareness of law and human rights has been enhanced,and more and more attention has been paid to spiritual interests and personal interests.More and more cases have been filed in which victims claim compensation for mental damage to protect their legitimate rights and interests.However,China's mental damage compensation system was established late,and civil laws are relatively principled,especially the determination of the amount of mental damage compensation.,the relevant judicial interpretation of the Supreme People's court only provides reference factors.,when determining the specific amount of compensation,the Supreme People's court gives judges greater discretion.Therefore,the peopl's court in the face of various types of mental damage compensation cases,there are many puzzles about how to determine the specific amount of mental damage compensation.In this case,some provincial people's courts,in accordance with the relevant provisions of judicial interpretation,combined with the level of economic development and judicial trial in the region,have formulated the applicable standards for determining compensation for mental damage in the region,and can also make adjustments within a certain range according to the actual situation of the case.Based on the sample analysis of the Guidance Opinions of nine provincial high courts in Anhui Province and Beijing City,we can see that when determining the amount of mental damage compensation applicable to the region,we adopt the limit compensation method,the limit classification budget method and the reference method,and the determination of the amount of mental damage compensation is closely related to the local economic development level.Different regions have different standards for the amount of compensation for mental damage.Some areas are divided according to the different subjects and acts of infringement,while some areas are divided according to the different degree of mental damage of the victims.No matter what kind of determination method and division standard is adopted,the amount of compensation for mental damage should be set in accordance with the “reasonable restriction principle”,that is,each region should consider all aspects when formulating the specific maximum or minimum amount of compensation for mental damage,especially the local material life development level,in order to ensure the rationality and fairness of the implementation of the system.Whether the minimum amount of compensation for mental damage should be set or not,there is a great controversy in the legal circle.This paper holds that the minimum amount of compensation for mental damage should be included in the standards of compensation for mental damage formulated by various regions,which can not only make the parties have reasonable expectations for the final amount of compensation for mental damage,but also limit the discretion of judges.In addition,the range between the maximum amount and the minimum amount of compensation for mental damage set by various regions should not be too large,so as to avoid the confusion of judicial trial.The consequences and social impact of tort are the factors that judges must consider when determining the amount of compensation for mental damage,but the existing judicial interpretation does not make detailed provisions on the consequences of tort,nor does it clearly stipulate the social impact that needs to be considered.In the guiding opinions of some provincial high courts,the consequences caused by the tort are detailed,when examining the consequences caused by the tort,the judge should determine according to the degree of mental damage suffered by the victim,and consider the degree of external physical damage of the victim.Because the mental damage suffered by the victim is subjective,in judicial practice,the judge mainly determines the consequences of the tort through the physical injury or disability level of the victim.Social impact is also a consequence factor that needs to be considered in judicial practice.The evaluation and opinion of the public on the damage and consequences suffered by the victims will affect the degree of mental damage of the victims.Only through a comprehensive investigation can the judge better determine the impact of the consequences of the tort on the victims,so as to accurately determine the final amount of mental damage compensation.The severity of the damage is the limit of the mental damage,and its standard is very important.In this regard,the current law and judicial interpretation in China are lack of specific definition,and some guiding opinions of provincial high courts are detailed,but the provisions are different,which is easy to cause judicial confusion.Therefore,it is necessary for the Supreme People's court to make guidance through the formulation of judicial interpretation,so that local courts can apply it in combination with the local actual situation.The factors to determine the amount of compensation for mental damage include not only the consequence factors,but also other factors stipulated in the judicial interpretation and the consideration factors stipulated in the guiding opinions of some provincial high courts.When determining the amount of compensation for mental damage,a judge should not only examine the specific circumstances such as the extent of the fault of the infringer,the means of infringement,the occasion,the way of conduct,etc.,the extent of the fault of the victim himself,the profit of the infringer due to the infringement,the economic ability of the infringer to bear the responsibility,etc.,but also consider the relationship between the victim of mental damage and the deceased The attitude of the obligee to admit the mistake afterwards and the specific social conditions of both parties.When determining the amount of compensation for mental damage,the judge should consider it comprehensively and investigate it comprehensively so as to better protect the legitimate rights and interests of the victims.