A Study On The Construction Of The Liability System For The Third Party’s Nervous Shock

The third party’s nervous shock compensation system is derived from the torts law of the United Kingdom,and it mainly remedies the third party’s mental damage caused by infringement.In practice,cases where a third person witnesses or hears an accident involving another person,especially a close relative,causes damage to his own spiritual interests,and then requests the perpetrator to bear the responsibility for compensation.By analyzing relevant cases and comparing the basis and the results of the judgment,it is found that the court mainly applies the principle of fair liability,explains by analogy the right to claim compensation for mental damage to the close relatives of the deceased,and expands the right to explain health to solve the problem of compensation for third party’s nervous shock.The inconsistency in the application of law has caused differences in the determination of responsibilities among courts,leading to huge differences in judgment results,and it is difficult to achieve fairness and social justice in individual cases.The reason is that our country’s current tort laws and regulations are insufficient to protect the third party from mental damage.A comprehensive comparison of the views of various scholars determines that the nervous shock suffered by the third party is indirect damage,which is quite different from the mental damage caused by the death of the victim by the close relatives.The fundamental rights and interests of the third party being infringed are not the right to health or identity,but the spiritual interest.The third party’s nervous shock can neither be protected by the right to health,nor is it consistent with the connotation of the right to identity.Therefore,it is necessary to explore the relief path of the third party’s nervous shock in our country.In this regard,we can learn from the useful experience of foreign law.The United Kingdom and the United States have established third party’s nervous shock as an independent type of infringement.Germany has included third party’s nervous shock in the protection category of the right to health.The two major legal systems have finally formed relatively complete system specifications through legislative and judicial development,achieving the balance between protection the rights of third parties and the freedom of behavior of the actor confirm the feasibility and legitimacy of the system."Civil Code" has reserved a space for protection of third party’s nervous shock.Judicial practice has accumulated certain experience,and we can try to create a third party’s nervous shock compensation system in our country.The specific system design is as follows: First,the scope of the third party is limited to the close relatives of the direct victim.The second is to learn from the theory of considerable causality to determine the causality,and to determine whether the third party should be compensated by the theory of legal purpose.The third is based on the principle of fault liability as the principle of imputation.It examines the perpetrator’s intention or negligence and the illegality of the behavior,and comprehensively judges the establishment of the perpetrator’s liability for damages.The fourth is to distinguish between direct victims and indirect victims,and set the damage standards that can be remedied.Fifth,the responsibility should be taken in the form of compensation for mental damage,and the discretionary compensation method should be used to determine the amount of compensation by integrating various elements.