The Empirical Research On Compensation For Mental Damage In Criminal Incidental Civil Action

On 1 March 2021,the "Interpretation of the Supreme People’s Court on the Application of the Criminal Procedure Law of the People’s Republic of China"(hereinafter referred to as the "New Judicial Interpretation of the Criminal Procedure Law ")came into force,and Article 175(2)of the New Judicial Interpretation of the Criminal Procedure Law amended the request for compensation for mental damage from "inadmissible" to"generally inadmissible".General inadmissibility".The new word "general" is considered to be the Supreme People’s Court’s "half window" on compensation for mental damage in criminal incidental civil action.The amendment,which changed the absolute prohibition in the past,has left room for further improvement of the system of compensation for mental damage in criminal incidental civil action.However,in practice,most courts still take the position of "no compensation".Although the White Paper on the Inspection of Minors(2020)issued by the Supreme People’s Procuratorate affirms the reasonableness of applying compensation for mental damage in cases of sexual abuse of minors,the judicial interpretation has not yet clearly defined the types of cases that are "exceptionally admissible",resulting in very few cases in which compensation for mental damage has been upheld after the promulgation of the new regulations,and the understanding of the mental damage compensation system in criminal incidental civil action varies greatly from judge to judge,leading to confusion in the application of the law in practice and the frequent occurrence of "different judgments in the same case".With the increasing awareness of human rights protection,the Civil Code and the State Compensation Law both provide for compensation for mental damage,but in the field of criminal legislation,compensation for mental damage has still not received much attention.Although the design of the system is mainly based on efficiency,the full protection of the legitimate rights and interests of the victim should take precedence over efficiency.The right to claim compensation for mental damage is a right explicitly stipulated in the Civil Code and should be respected and protected,and the Criminal Procedure Law does not explicitly deny the right to claim compensation for mental damage.Based on the consideration of the unification of the legal system,the system of compensation for mental damage in criminal incidental civil action should be established as soon as possible in the field of criminal legislation.This article focuses on the issue of compensation for mental damage in criminal incidental civil action,and discusses it from three aspects.In the first part,an empirical study is conducted on the basis of a review of China’s system of compensation for mental damage,a summary analysis of the current situation and dilemmas of the application of the system of compensation for mental damage in criminal incidental civil action in practice,and a summary of the reasons why theoretical and practical circles oppose the inclusion of compensation for mental damage in the scope of criminal incidental civil action.The second part is an analysis of the necessity and feasibility.The author refutes the arguments against the incorporation of mental damage compensation into the criminal incidental civil action from the perspective of necessity,and argues from the perspective of feasibility that the existing system and practice have provided sufficient conditions for the establishment of the mental damage compensation system in the criminal incidental civil action,and that the time is ripe for the establishment of the system.The third part is the construction of the system of compensation for mental damage in criminal incidental civil action,and the author designs it in four aspects: principles,scope,standards and supporting systems."of the exceptions to the enumeration,that intentional injury causing serious injury or death,intentional homicide,rape,forced indecent assault,insult,child molestation,child abduction,illegal detention,insult and libel,traffic accidents should be included in the scope of acceptance of compensation for mental damage in criminal incidental civil action.At the same time,the author has discussed the standard of compensation for mental damage,with a view to providing reference for the construction of a scientific and reasonable system of compensation for mental damage in criminal incidental civil action.