On The Determination Of The Amount Of Compensation For Mental Damage In Our Country

The system of compensation for mental damage in a country is the embodiment of the protection of human rights in that country.Since 1900,Germany first established the system of compensation for mental damage in its civil code,which gradually became an important part of the civil law system,China is no exception.The rapid development of our socialist market economy has raised people's material standard of living to a new level,and people are beginning to attach importance to the mental rights and interests.However,the system of compensation for mental damage in our country is not complete because its started fairly late,the relevant legislation is imperfect,lack of the authoritative legal basis,the judicial practice is out of order.Explanation of certain issues about determining liability for compensation for mental damage(hereinafter referred to as Explanation of compensation for mental damage)is the only founded while judges trial of cases,nevertheless its lack of practicality,It is only a macro-regulation of the principle of the system that gives judges greater discretion.In particular,the lack of specific criteria for determining the amount of compensation for mental damage and the absence of detailed and uniform provisions have resulted in the judge's discretion being the decisive factor in the determination of the amount in judicial practice,leading to the phenomenon of a number of co-accused different sentences,which has aroused high social concern.How to determine the amount of compensation is the most difficult problem in all countries of the world.At present,the lack of relative consistency of the standard for determining the amount of compensation for moral damage has affected the judicial trust and the judicial authority to some extent.This article is composed of introduction,text and conclusion.The text is divided into five parts:The first part is the outline of compensation for moral damages,which introduces the basic content of the concept,nature and function of compensation for moral damages.It distinguishescompensation for moral damages from compensation for death(disability),and the nature of compensation for moral damages is civil financial liability.The function has three parts: soothing function,compensation function and punishment warning function,which mainly function is soothing function.The second part analyzes the practice of the determination of compensation for mental injury in China,through the three provinces and cities of Shandong,Beijing and Shanxi.The standards for the determination of compensation due to different compensation standards have been analyzed,and the problems existing in judicial practice in determining the amount of compensation for moral damage in China have been further discussed.For example,the current provisions limit the maximum amount of compensation is too low,the general criteria for determination,the judge's trial and the victim's claim for compensation,and the calculation standards for the amount of compensation for moral damage in different courts are inconsistent,causing social injustice and reducing judicial credibility.There are also difficulties in determining the amount of compensation for mental injury in foreign countries.The third part mainly analyzes the amount of compensation for mental injury cognizance of discretion standard,including the recognition of the principle have discretion principle,restricting principle,applicable to distinguish the treatment principle,fair principle,money compensation principle and negligence offset principle;Method of discretionary estimate method,comparison method,the finite method,quantitative method and the standard to distinguish the type of damage compensation law,and analyzes the judicial practice in our country in that the compensation factor and shortcomings.The fourth part mainly introduces the development of the foreign mental damage compensation system and the determination criteria of the amount.There are also difficulties in determining the amount of compensation for mental injury in foreign countries.The principles for its determination include the principle of discretionary compensation,the principle ofproportional compensation,the principle of standard compensation,the principle of fixed compensation and the principle of limited compensation;The methods of determination include the appropriate compensation method,the proportion compensation method with reference to medical expenses,the fixed compensation method,the maximum limit compensation method and the daily standard compensation method.The system of compensation for mental damage in China is explored on the basis of referring to the successful experience in foreign countries and combining with the actual situation in China.The fifth part is the key part of this article,which is mainly a perfect suggestion for the determination of the amount of compensation for moral damage in China,and a perfect proposal from three aspects: principle,method and consideration.In the principle aspect,three suggestions are put forward: to embody the punitive principle,the multiple approaches complementary application principle,and the flexibility principle;In the determination method,it is proposed to divide the economic region,unify the calculation standards within the region,and increase the amount of compensation,the free disclosure of judges 'psychological evidence,and refer to typical cases and other methods;In terms of considerations,it proposes to increase the number of comprehensive categories such as giving due consideration to the social subject status of inf-ringers and victims,weakening the economic carrying capacity of inf-ringers,the independence of financial compensation methods,the different subjective identity of the claim subject,and the subjective attitude of inf-ringers to determine mental damages.Amount.