Research On The Problem Of The Ascription Of Death Compensation

Death compensation as the most important part of the system of compensation for personal injury is related to whether the victims and their families receive proper compensation, and also reflects a country’s level of civilization and human rights protection efforts. There are many people concern about it. But among the problems of death compensation, there is less discussion of the ascription of death compensation. The law provides relatively vague regulations on the problem of the ascription of death compensation, only requires that close relatives of the deceased are entitled to require the infringer to pay death compensation. But for which close relatives of the deceased can get death compensation; if there are many close relatives of the deceased, how to distribute death compensation among them; if close relatives of the deceased cannot be identified or in the absence, who can request death compensation and so on are not made clear. These lead to the same case having different trials. These not only result in the deceased family members adhering to the procedure and damage the family harmony, but also damage the fairness and authority of law. Therefore, the study of the ascription of death compensation becomes important and having theoretical value.Through the research on the issue of the ascription of death compensation, I will propose solutions to solve the problem of the ascription of death compensation in order to provide useful ideas to improve the system of death compensation. This article is split into the following five parts:The first part is an introduction, mainly introduces the background of the selected topic and the practical significance, the literature summarize, the research technique, the article structure as well as the article possibility innovate and the insufficiency. Researching on the problem of the ascription of death compensation plays an important role in perfecting the death compensation system. Solving the issue of the ascription of death compensation is not only useful to resolve conflicts between family members of victims and maintain victims’ family harmony, but also conducive to maintain the fairness of the judicial system. This article used empirical investigation, historical research, comparative studies and other research methods to studying the issue of the ascription of death compensation. This article intends to analyze the case and the theoretical basis of death compensation system, helps to put forward value suggestions.The second part discusses the nature of death compensation. The nature of death compensation determines the solution of the problem of the ascription of death compensation and as the preliminary problem of the ascription of death compensation must be clear at first. Based on the analysis of the evolution of death compensation system and the relevant academic theory about the nature of death compensation, the article puts forward the nature of death compensation. Accordingly, the infringer should take the responsibility to pay death compensation to the victim. Death compensation is compensation for correcting the value of life through compensating the close relatives of victim to complete saving the right of life.The third part discusses the general case of the ascription of death compensation. Through analyzing and summarizing the cases related to the ascription of death compensation and combining the relevant laws as well as the relevant theories, the article proposes correlation suggestion to consummate the ascription of death compensation system. In the general case, we should respect the agreement between the two parties if the agreement does not violate the law and use the agreement first. If the two parties do not have an agreement, we should separate the spouse living expenses from the death compensation and give to the relevant people. The remaining death compensation owned by close relatives of the deceased. Then we should classify the close relatives of the deceased to the claimants in the first order and the claimants in the second order. The claimants in the first order include spouse, parents and children and the claimants in the second order include grandparents, grandchildren, brothers and sisters. If there are the claimants in the first order, the claimants in the second order cannot ask for death compensation. The judge has the discretionary power to determine the distribution of death compensation among the claimants in the first order. When the judge distributes the death compensation, he should concern about the following factors such as the relationship with the deceased during his lifetime; whether live together with the deceased; whether have a fixed income; the economic status; the health status; how many children do the deceased’s parents have; whether the deceased’s parents divorced; whether have a retirement pay; how long does the spouse of the deceased married with the deceased; whether the deceased’s children are already an adult; whether the deceased’s children are already graduated and so on. The judge also should take care of the juveniles, the elderly and the incapacitated person while ensuring fair.The forth part discusses some special cases of the ascription of death compensation. In this part, mainly discusses the following four situations: whether the creditors can get repayment from death compensation; whether the cohabitants can share the death compensation; whether remain a part of death compensation for fetus and the issue of the ascription of anonymous deceased’s death compensation. The article will give solutions to those four situations through analyzing them. The creditor cannot get repayment from death compensation because of the exclusive personal nature of death compensation. Unless the close relatives of the deceased all agree to use death compensation to repay the debt. If the deceased’s cohabitant could prove he live together with the deceased as husband and wife, the deceased’s cohabitant can get some death compensation. But if the deceased’s cohabitant knows the deceased have a spouse, he cannot get death compensation. When distribute the death compensation, we should remain death compensation for the fetus. Because the fetus will eventually become a person and the law should protect the fetus. The procurator ate can take the place of the anonymous deceased’s close relatives to ask for death compensation. When identify who are the close relatives of the deceased, the procuratorate should give the death compensation to them. If the anonymous deceased don’t have any close relatives, the country can get the death compensation and put the death compensation in the social relief fund.The fifth part summarizes the whole thesis and the central theme of this article.Death compensation system is a matter of great concern because of its significance and particularity. There are a lot of dispute about the nature of the death compensation and the ascription of death compensation. The current law of death compensation is still in a backward state and doesn’t clear the nature of the death compensation and the ascription of death compensation. That will lead to the same case having a different trial. That not only seriously damages the authority of the law, but also makes the concept of a fair and impartial rule of law in our country seriously challenged. Therefore, analyzing the relationship between the right of life and death compensation system, figuring out the nature of death compensation, exploring the death compensation and solving the problem of the ascription of death compensation is important for improving and perfecting the death compensation system. At the same time, it can also help to improve the death compensation system legislation.