Zisscuss The Ascertainment And The Calculation For Solatia Of Emotional Damages

Whereas, the ascertainment of solatia of emotional damages is the problem desired to be ascertained in the area of law theory and legal practice. Hereby, this disquisition, combined the status quo of theoretical study in the world and legal practice, is used to research and discuss the topic of the ascertainment and the calculation for solatia of emotional damages by the studying methods of comparison, system and analyzing demonstration. The writer puts forward her systematical methods for the ascertainment and the calculation for solatia of emotional damages, hoping to contribute to the theoretical study and legal practice hereof.The first part of this disquisition intends to systematically research the fundamental theory of emotional damage. For one thing, the writer concludes the concept of emotional damages on the groundwork of analyzing the gain and loss of the generalized theory of narrow and broad sense by scanning the status quo of theoretical study and legal practice in the world. In the next place, the write concludes and analyzes the three characters of emotional damages, such as non-property, independence and singularity. Finally, regarding the emotional damages and property damages, the concept are emphatically differentiated and analyzed, the differentiated criterions are discussed. The writer put forward her view point of this issue by oppugning such dichotomy.The second part of the disquisition focuses on the analysis of the difficulties of the ascertainment and the calculation for solatia of emotional damages in legal practice. Such the difficulties includes the shortage of the subjective damages degree and objective measurement criteria, the damage is confirmed by the judge' s decision, the remedial method isn' t equal, the degree of subjectivity of injurer' s offence is the essential element of the judgment. Therefore, the write generalizes the reasons for the difficulties of the ascertainment and the calculation for solatia of emotional damages in legal practice is that the damage of the subjective take, the judge' s subjective criterion and subjective judgment depending on abovementioned subjective criterion.The third part of the disquisition systematically researches existing legislation practice and theoretical product of the ascertainment and the calculation for solatia of emotional damages. Firstly, the writer generalizes existing theories of the ascertainment and the calculation for solatia of emotional damages by discussing the methods of ascertaining the amount of the solatia of emotional damages in different countries, including the considered compensation method, the fixed compensation method, the compensation method with maximum limitation, the compensation method according to the ratio of curative costs, the compensation method according to the daily standard, the compensation method according to distinguishing the different damages. Secondly, the writer considers that the criterion of the ascertainment and the calculation for solatia of emotional damages in the valid law in PRC is the considered compensation method and considered criterion is too principled.The ascertaining procedure of solatia of emotional damages isn' t detailed in the operation of the judge' s discretion. The corresponding legal practice incorporates the shortage of research and study of legal thought mode, the roughness of the judgment technology. Therefore, the legal thought mode of solatia of emotional damages and corresponding judicial technology show the necessity of study.The writer parses the writer' s method of the ascertainment and the calculation for solatia of emotional damages in detail in the fourth part of this disquisition. Namely, it is necessary that the legal thought mode from "basic sums" to "obligation sums" ; concerned with judicial technology, the operation of basic sums embodies the security of law, the operation of obligation sums realizes the appropriateness of law; the worthy objective hereof is the limitation of judicial discretion, and the abovementioned method make the judge apply the law more simply, meticulously and effectively.