Analysis Of The Differences Between Chinese And German Mental Damage Compensation And The Background

Regarding mental damage,our legislation and judicial practice only vaguely recognize its existence.However,there is no meticulous research on what exactly is mental damage,how to measure the damage and how to compensate it.Thanks to the opportunity to study in Germany,the author studied the German mental damage compensation system and marveled at the meticulous damage measurement standards,so I wanted to compare it with my country's mental damage compensation system for thought and enlightenment.In the introduction of the article,the author found two problems: First,in addition to a simple compensation for mental damage in our country,in some cases,disability compensation and death compensation are also mental damage compensation,but these two compensations amount according to material standards(income level).In German law,family members have only three claims for compensation in the case of death: funeral expenses,maintenance and spiritual comfort,and do not compensate the deceased's income loss.Secondly,when compensating for purely mental damage compensation items(namely,"mental damage compensation" or "mental comfort"),compensation is generally based on the victim's level of disability.The German law comprehensively considers the victim's damage from the practice of the victim's torture,the inconvenience caused to life,and the impact on social relations.In the first part of this article,the author compares the two countries' perception of compensation for mental damage.In Germany,mental damage has undergone a cognitive process from subjective to objective,from that mental damage is the physical or mental pain of the victim,to that it is a damage to personal self-determination and selfdevelopment.Our country is still in a chaotic state,and the boundary between mental damage compensation and material damage compensation is still unclear.The second part of this article further compares the measurement standards of the two countries.It is found that when measuring mental damage,the German courts will measure the victim's treatment,living conditions,career,social relations and other aspects to assess the victims.The impact is dominated,with exceptions measuring the offender's fault and profit.But our country is different.In addition to a single standard of measurement and a vague process of argumentation,the material level is also the standard of measurement.In order to explore the causes of these differences,the author attempts to find answers from the perspective of the function of compensation for mental damage in the two countries and the social and institutional differences between the two countries.The third part of this article is the analysis of the functional background.Germany has always attached great importance to the development of the functional positioning of mental damage compensation,mainly developing three functions: filling function,soothing function and prevention function.Depending on the specific case,the applicable functions are also different.In individual cases,it is often the case that several functions are functioning at the same time,or one of the functions is playing a leading role,all of which must be analyzed in conjunction with specific circumstances.This is also the reason why Germany has spent a lot of time statistically classifying new cases of mental damage every year over the years.This is the direct reason for the comprehensive and meticulous measurement of Germany.However,my country's pure spiritual damage compensation is still based on the "weakened" comfort and declaration of rights,so the judges appear to be random when measuring,and have not developed a comprehensive measurement standard.The fourth part of this article discusses the institutional and social background of the two countries: it is found that affected by the concept of damage,social welfare system,individual consciousness,and China 's unique apology system for compensation,Germany takes the individual as the foothold when measuring damage,but Our country pays more attention to people's economic development and family connection.The general provisions of the German "Civil Code" of the debt law have clearly distinguished between material damage and non-material damage,and mental damage compensation has gradually grown into an equally important damage compensation system as property damage.However,our country does not distinguish between material damage and mental damage in the system.The various regulations only list the items of compensation,and the mechanical application often results in duplication or confusion of compensation effects.Furthermore,this article puts forward suggestions in the concluding part,thinking that China should first make a clear distinction between mental damage and material damage,and truly understand what mental damage is in order to achieve better compensation for mental damage.In addition,the author also suggests that China can follow the German(Schmerzensgeldtabellen)guideline to collect cases of mental injury and list the main measurement factors in each case to achieve continuous improvement of the standards of mental injury measurement and judicial Practitioners make better guidance.