Study On The Mental Injury Compensation Liability Of Personality Object

Property with personality attributes means the specific object that closely linked with the interests of personality, reflecting the deep emotion and the will, and the pain caused by the loss and da mage can not be rem edied by substitutes. Property with personality attributes contains not only th e interest of persona lity,but also has the irreplaceable uniqueness and its disposal should also subject to certain restrictions.Although the matter has personality attr ibutes, because the pe rsonality interest attributes have priority. when it is infri nged and shall not apply to the article19 of the tort liability law, but apply to a rticle22 about the mental compensation system when personal rights and interests are infr inged.It is not only conducive to people’s comprehensive protection, but also confor m to the legal and common sense. Before tort liability law prom ulgated, the com pensation for m ental damage of personality was reflected in article 4 in the Supr eme Court of China published in 2001. But because of the issuance of the Tort Liability,the compensation of mental damage has a higher level legal basis. However, the in terpretation of the provisions of article4 about the " personality sym bolic specific commemorative items " still have suitable room which not only will not conflict with the "tort liability law", but also can be the refinement of article22 in the tort law on the provision of metal damage and also be a special provision compared to the regular provision.Compared the liability of mental damage by infringing property with personality attributes to the general tort liability,roughly the same as in the constituent elem ents, namely harm behavior, da mage, causation, fault, in addition, also need to m eet a special constitution, namely the infringed object is the property with personality attributes. Determine an object whether property with personality can through investigation the tim e factor, the source of rare degree, use or value connotation. The concrete forms include the object deriving from life circle rite, honor items, body material,and objects contained emotion. Due to violation of personality conditions of compensation for m ental damage, the infringe s’ behavior is not lim ited in tort, in breach of the situ ation can also be applied, and the spiritual dam age to a seriou s extent, its special value that can be proved by a person’ s body. The mental dam age compensation liability by infringing the pr operty with personality’s attributes should be generally applicable to im putation principles, namely the principle of fault liability, not only because the princ iple of strict liability will ag gravate the responsibility of each phase, and lead to th e property for person hoo d economic activities can not be normal, but also the principle of fault liability is more consistent with the characteristics of the property for person hood which is conducive to balance the infringer and the interests of the infringerIn addition, compensation for the loss is the main way to bear tort liability of infringement of people’s money, and the co mpensation is mainly responsible for the form of compensation for losses, However,due to the different abilities of achieving sources and the com parison of money and analogues,it m ay not be m ore comfort to the victim, so the victim shall be based on the request for compensation, allowing real for the calculation of the am ount of da mages.To the calculation of the sum of t he damage compensation,need to consider the degree of the fault of the infringer, the situation of the infringem ent happened, the st andard of living of the local court and other factors. At the same tim e,it can be com bined to the fixed for m compensation law of Japan and the m aximum compensation law.To develop a table at first, which can be in accordance with the personality and transverse all hum an relations and emotional sustenance of the per sonality types listed in dif ferent types, such as personality, family, friendship, love, com panionship and so on, on behalf of the longitudinal table.The intensity of the ki nd of personality inte rests can be divided into three to five levels, while the provisions of the amount of compensation for each level and also in the whole system, stipulating the m aximum limit of the spirit damage compensation to avoid the infr inger bear astronom ical unreasonable compensation amount.