The Study Of Several Questions In Mental Damage Compensation

The enactment of 《General Principles of Civil Law 》 is the symbol that the system of mental damage compensation is established in China. Starting from the enactment of 《Reply on Several Issues in Handling Right of Reputation Case》 by Supreme People's Court in 1993 which cited the phrase of "mental damage compensation", the study of mental damage compensation in the fields of both civil theory and practice changes from whether to compensate or not to how to compensate. In March of 2001, 《Interpretation on Concerning Several Issues on the Establishment of Mental Damage Compensation Liability in Civil Infringement Case 》 by the Supreme People's Court which is based on practice raised more mature opinion about using mental damage compensation to protect personal right so that it becomes the second milestone about the civil protection of personal right in China. However, judicial interpretation is limited to the realm of legislation, it is restricted by imperfect stipulation of civil general law – General Principles of Civil Law about the system of mental damage compensation so that it is inborn defective. Therefore, under the circumstances that the revision of the general civil principles and enactment of the civil code is under discussion, it is of great positive significance to study how to establish and improve the system of mental damage compensation in legislation. The article is intended to promote the legislative step through deep study of mental damage compensation in theory and practice.The article is over thirty thousand words and it is divided into four chapters. Chapter one: analysis of concept and function of mental damage compensation. The chapter gives analysis on the concept of mental damage and the concept, internal construction, function and characteristic of mental damage compensation. The author thinks that mental damage means mental pain or mental benefit incurrence which illegal behavior inflicts on civil subjects, the essence of mental damage is the demage to metal legal interest in civil subjects,civil rights and other civil legal rights; Mental damage compensation means legal liability in the form of property because illegal behavior inflicts mental pain or mental benefit incurrence on civil subjects. Mental damage compensation has the functions of remedy of damage, consolation of pain and punishment on injurers. Chapter two: the legislation and judicial practice of the system of mental damage compensation in China. The chapter summarizes and reviews relevant stipulation about mental damage compensation of current civil basic law ( General Principles of Civil Law) , separate regulation and administrative laws and regulations. It not only recognizes the breakthrough of current regulations in judicial case and interpretation, but also puts forward perfect ways and approaches after rethinking of the inadequacy of mental damage compensation in legislation and judicial practice. Chapter three: construction and definition of the extent of mental damage compensation. The chapter focuses on the definition of extent of compensation which is the core problem of the system of mental damage compensation. The author thinks that the subject includes both natural persons and legal persons, and the extent of the object of mental damage compensation should be improved from the following aspects: to make the status of right of personal dignity or personal right clear, to make the protection of material personal right perfect, to strengthen the protection of mental personal right, to replenish the protection of rights of paternity. Chapter four: the definition of mental damage compensation and judge's right of discretion. The chapter mainly talks about several specific questions in practice of mental damage compensation: the first is the definition of the extent of mental damage compensation claimant; the second is the distribution of burden of proof in mental damage compensation, the third is the choice of basis of liti...