Research On The Judicial Practice Of Compensation For Mental Suffering In Infringement Upon Authors’ Moral Rights

Scholars and judges agree that,under normal circumstances,“Compensation for Mental Suffering” can be applied to cases that infringe the authors’ moral rights: On the one hand,the moral rights of authors belong to the personal rights of civil law;on the other hand,the system of compensation for mental damage can better protect copyright owners.However,due to the lack of legal norms,it’s hard to apply the compensation for mental suffering in cases of authors’ moral right infringement.The support rate is very low.This article firstly introduces the special theories of the compensation for mental suffering in the field of the authors’ moral right infringement through the analysis of the nature of the Authors’ Moral Right:compared with the traditional personal rights in civil law,the infringement of the author’s moral rights does not necessarily nor directly cause mental damage;“Works”is an important factor affecting the severity of mental damage;whether to apply the compensation for mental suffering depends more on the judge’s judgment;the compensation for mental suffering is more closely related to “Compensation for Property Damage”.Guided by the above contents,this article then analyzes the judgments in this area,and proposes the following countermeasures against the four problems discovered.Regarding the issue of inconsistent legal basis,the basic rules on the compensation for mental suffering in the civil law should be used as the elementary basis for judgment,in order to realize the unification of the basic framework for the application of the compensation for mental suffering in the field of the authors’ moral right infringement.Regarding the problem of different ideas for“Applicable Conditions” of the compensation for mental suffering,we should determine the basic applicable conditions,then determine the specific applicable conditions according to the specific types of authors’ moral rights.Regarding the problem that the rules for determining the amount of the damages for mental suffering are not perfect,we should determine the scope of the amount,and determine the consideration factors.Regarding problems about “Evidence”,the court and the parties should pay more attention to the certification process.Especially,the court should do a good job of interpretation and arguments.We also hope that legislators can formulate relevant rules as soon as possible to promote the benign and orderly development of judicial application of the compensation for mental suffering in the field of the authors’ moral right infringement.