Research On The System Of Compensation For Administrative Tort And Mental Damages

The State Compensation Law of the People’s Republic of China,which was amended in 2010,establishes the compensation system for mental damage of administrative infringement.Article 35 of the Act provides that when an infringement by an administrative organ or its staff member causes mental pain or trauma to the relative person,the victim shall,within the the scope of the influence,be removed from the influence,restore his reputation and make an apology,and compensation for mental injury shall be paid for the serious consequences.However,with the wide application of the system in practice,many potential problems also appear.Because the standard has not been refined and the corresponding judicial interpretation is lacking,it is difficult for the administrative tort compensation system to realize the original legislative intention successfully.In order to further increase the understanding of the system of compensation for mental damage of administrative infringement and promote the improvement of the system,first of all,through the legal interpretation of the compensation for mental damage of administrative infringement,clear its concept connotation and the current situation of the application of judicial practice.Secondly,to explore the practical difficulties of the system,and analyze the current deficiencies in the theory and practice of the administrative tort compensation system,such as the revised "State Compensation Law" only provides for the right to life,health and personal freedom of the three rights suffered from the infringement of the moral damage compensation,but for the right tomoral personality,property with symbolic and other violations The loss of moral benefit caused by harm is not compensated,which makes it difficult to meet the needs of practice.In addition,the burden of proof,the scope of compensation,the standard of payment and the method of calculation of compensation for mental injury only provide a general framework,which leads to the difficulty of proving evidence or the low amount of compensation obtained by the victim in practice,and does not play the psychological comfort role due to the compensation for mental injury.Then under the problem-oriented,break through the current mode of thinking,take Japan,the United States,Germany and other extraterritorial administrative tort compensation provisions as a model,for China’s current practical difficulties to seek experience.After a comprehensive comparison of the extraterritorial administrative tort compensation for moral damage,combined with our country’s specific national conditions and system model,put forward the perfect path of our country’s administrative tort mental damage compensation system,such as clear compensation principle,compensation scope expansion,clear identification criteria and other specific measures.Finally,we look forward to the system of compensation for moral damages of administrative infringement,and expect that this mechanism of respecting the people and safeguarding human rights can run smoothly,reasonably and fairly,and make due contribution to the development of the rule of law in our country.