Study On Spiritual Damage Compensation In The State Compensation Law

The State Compensation Law revised in 2010 has added provisions regarding the spiritual damage compensation.Since there is only a principle legal provision stipulated in Article 35,a great many deficiencies have been revealed in juridical practices,which should be studied from theoretical aspect and defined in legislation.Based on individual cases,this article would directly research the practices of national spiritual damage compensation,summarize the challenges we were confronted with in practices of national spiritual damage compensation,such as difficult determination of serious consequences,distribution of burden of proof,establishment of compensation standard,and application of calculation method.In line with the comparisons of extraterritorial laws and requirements of China’s national compensation practices,some suggestions were proposed by the author to improve the spiritual damage compensation system.This article can be divided into four parts,excluding the introduction and conclusion.The development history of the spiritual damage compensation system of China’s national compensation was introduced in the first part.It pointed out that the rudiment of the national spiritual damage compensation was preliminarily specified in Article 120 and 121 of General Rule of Civil Law issued in 1987.Particularly,it mentioned that the spiritual compensation legislative regulation in the civil field laid a foundation for the establishment of the national spiritual damage compensation system.Though the national spiritual damage compensation was not involved in The State Compensation Law issued in 1994,the way of assuming the responsibility it stipulated,including eliminating influences on the victim,restoring the victim’s reputation and extending a formal apology to the victim,actually did not reject the national spiritual damage compensation.In this sense,the State Compensation Law revised in 2010 was given a solid foundation to add provisions concerning the spiritual damage compensation solatium.The following two parts mainly focused on problems spiritual compensation standard and calculation method.Combining the problems challenging the national compensation practices and comparing and drawing experience from extraterritorial legislations and juridical practices,Considering that the infringement subject in national compensation is authority of public rights,the national compensation should not be less than the civil compensation.In addition,the punitive compensation principle was recommended.The differentiated spiritual damage compensation system specific to violation of life and health,personal freedom and other circumstances was formulated,for the purpose of guaranteeing the legitimate interests of citizens and realizing the fairness and justice of individual cases.