| The compensation system of mental damage is an important component of the civillaw. The legislation of the compensation system of mental damage is relatively late, theregulations need to be improved and the legislative techniques are relatively out-of-date.Meanwhile, the theoretical study on this system isn't deep and thorough, so it doesn'tlive up to the needs of legislation and judicial practice. In order to meet the needs oftimes, we should learn from foreign legislative experience and judicial techniques,carefully summarize the legal practices and the theoretical achievements, constantlyconsolidate the construction of the civil law system and provide legal foundation forcitizens who seek for rights protection. This paper tries to lay theoretical foundation ofthe compensation system of mental damage for the future civil code through thecomparative analysis method of foreign legislation and the knowledge of severalcontroversial problems in this system. The first part elaborates the definition of mental damage. The key point of the study of the compensation system of mental damage lies in the accurate definition of the concept of mental damage. There have been different versions of the concept of mental damage. This paper explains three different definitions of mental damage in foreign legislation and different understandings of this system due to these different definitions. It analyzes the accurate definition of mental damage from theoretical and practical point of view, and therefore it lays solid foundation for the construction of the entire theoretical compensation system of mental damage. In order to distinguish mental damage from other damages, especially from other non property damage, it fully explains the characteristics of mental damage from four aspects: non property, cause and effect, meaning function, subjectivity and objectivity. In order to theoretically systemize the definition of mental damage for the determination of mental damage by judicial practice, it is necessary to classify mental damage: based on whether it needs to be proved, it can be classified as nominal mental damage that occurs whenever there is act and mental damage that needs to be proved. In terms of happening basis, it can be classified as mental damaged based on rights violation and that based on contract violation. In terms of object, it can be classified as mental damage of property rights violation, personal rights violation and other benefits violation and existing mental damage and future mental damage; In terms of consequences, it can be classified as 1common mental damage and severe mental damage. In the second part, the author makes a detailed analysis of the definition and characteristics of mental damage and the functions of the compensation system of mental damage in combination of law theories and judicial practice. First, as to the definition of mental damage, the author analyzes and comments on the broad sense theory and the narrow sense theory. It puts emphasis on the distinction and connection between the money compensation of mental damage and the mode of responsibility of compensation for mental damage. Second, as to the characteristics of compensation for mental damage, it concretely analyzes the characteristics of compensation for mental damage and their practical meanings in four aspects: the exclusivity of request right, the subjectivity and objectivity of the compensation standards, pluralism of the compensation standards and changeability of the amount of the compensation. Third, as to the functions of compensation for mental damage, it analyzes three different views in academic field and it elaborates the compensation, consolation and punishment function of compensation for mental damage. It emphasizes that compensating damage and consoling victim are the main functions and punishment function is an auxiliary function. The... |
