Study On Compensation For Mental Injury In Civil Suit Collateral To Criminal Proceedings

As an important system in legal field,spiritual compensation directly reflects the inner pith of protecting spiritual right and it directly reflects to which extent does a country respect and protect human rights.From Article 120 of General Rule of Civil Law which was performed since 1987,Chinese Government has been unveiling relevant laws and judicial interpretation to support spiritual compensation,which keeps improving and trends to maturity.Reflecting the civil suit collateral to criminal proceedings field,they hold a negative attitude towards this system.Such regulation causes a lot of problems to judicial practice.In order to respond to claim of human rights from international society,to work out the contractions between laws of different departments,to inhibit crime effectively,to protect victim’s spiritual right,it is imperative for China to establish the spiritual compensation system in civil suit collateral to criminal proceedings field.Besides introduction and conclusion,this paper is divided into four parts.Part one,the summary of spiritual compensation in civil suit collateral to criminal proceedings.Beginning with the definition of spiritual damage,the author introduces the definition of spiritual compensation in civil suit collateral to criminal proceedings.The author also concludes and explains the functions and features of spiritual compensation and the definition of spiritual compensation in civil suit collateral to criminal proceedings.Part two,the present situation of spiritual compensation in civil suit collateral to criminal proceedings.In this part,the author first introduces the present situation of legislation and justice.When introducing the present situation of legislation,the author compares civil law with criminal law in order to prove the different attitudes that civil law and criminal law hold towards the spiritual compensation.Appealing to the present situation of legislation and justice,the author concludes some problems that caused by the negative attitude civil suit collateral to criminal proceedings holds to spiritual compensation.In summary,the problems are as following.First,the legislation is too simple and too general to keep the unification of legal system.Second,the limitation to legal protection of victims disobeys fair principle.Third,the weakening of force and width of punishment and inhibition of crime damages the power of law.In the last,the author divides the spiritual compensation in civil suit collateral to criminal proceedings into two parts,positive theory and negative theory after referring to some main doctrines of it.In the end of the study,the author agrees with the positive theory.Part three,analysis of the meaning and necessity of establishing civil suit collateral to criminal proceedings.As agreeing with the positive theory,the author briefly analyzes some necessities of adding spiritual compensation into civil suit collateral to criminal proceedings.First,it is determined by the financial development and the discipline of law development.Second,it is a good idea to solve the confliction between branch laws and to maintain the unification of legal system.Third,it is necessary to provide victim’s spiritual rights.Forth,it is necessary to protect social justice and to make up the limitation of criminal punishment.Part four,feasibility and basic ideas of establishing spiritual compensation in civil suit collateral to criminal proceedings.When it comes to feasibility,the author lists three reasons as following.First,referring to other countries’ experience about legislation and justice,legislation should accord with international development.Second,there is already legislation foundation for spiritual compensation.Third,judicial practice has already set an successful example for spiritual compensation in civil suit collateral to criminal proceedings.The author then makes some assumptions about establishing spiritual compensation system in civil suit collateral to criminal proceedings.The assumptions mainly include preconditions,subject applying for compensation,the arrangement of compensation and determination method of the amount of compensation.