On The Determination And Discretion Of Compensation For Mental Damage

Along with the economic and social development and the enhanced awareness of rights,people have gradually turned their eyes from property rights to moral rights.In such a context,cases involving mental damage have become increasingly frequent in judicial practice.The introduction of Civil Code of the People’s Republic of China(hereinafter referred to as the "Civil Code")has brought protection of the personality rights of individuals up a new level.However,looking back on the judicial practice,we still have much to think of and reflect on.In the meantime,by comparing the previous legislative and judicial practice with the newly published Civil Code,the author believes that there’s still room for deliberation and consideration in the Civil Code concerning protection of personality rights,and provisions on claim for compensation for mental damage in particular.In Section 1 of Chapter 1,a sampling analysis of judgments for cases of compensation for mental damage in 2019 is conducted.Firstly,the overall distribution of types of such cases is reviewed;secondly,support to solatium for mental damage in different types of such cases is reviewed;in the end,the amount of support to the solatium in different types of such cases is reviewed,so as to have a glimpse of the judicial practice in cases of compensation for mental damage.In Section 2,a statistical analysis is given to the identification and discretion of cases of compensation for mental damage in judicial practice based on two elements of such compensation easier to have quantitative statistics,i.e.,the extent of fault and the consequences of damage.With respect to damage,a statistical analysis of disablement and medical expenses closely related to determination of mental damage,and a comprehensive analysis of the purpose,means and behavior of the perpetrator,etc.not quantifiable are both conducted.Through review of the judicial practice,a basic understanding of the general situation of cases of compensation for mental damage,and the identification and discretion of such cases in judicial practice is achieved.In Chapter 2,on the basis of review of the judicial practice,the author summarizes several major problems with the judicial practice in compensation for mental damage:first,the criteria for mental damage being over-reliant on disability grade and death,which practice is adverse to protection of the personality interests of natural persons;second,the absence of specific paths and rules of adjudication for discretion of the amount of compensation for mental damage,and lack of reasoning in judgments and limited extent of exposure of the judge’s free evaluation of evidence through inner conviction,for which the parties cannot have a reasonable expectation for discretion of the amount of such compensation;third,lower rate and amount of support in the practice in cases of personality rights in addition to disability and death.In Section 2,causes of the above problems are analyzed.It is believed that the cause of the first problem lies in the predicament of determination criteria for compensation for mental damage.Without clear provisions on "severe mental damage" in legislation and a unified understanding thereof in academic circles,under the strict system of judicial accountability,the undertaking judge tends to base the judgment on objective or third-party assessment.Varied discretion of the amount of compensation for mental damage is related to characteristics of such cases themselves and the absence of mature practices for such cases.The cause of lower rate and amount of support for general personality rights is related to the said problems,also for the conservation position taken by the legislation and the practice for the compensation for mental damage.In Chapter 3,according to review of the judicial practice,and analysis of existing problems,targeted reflections on improvements in the system of compensation for mental damage in China are made.To begin with,addressing the limited determination criteria overemphasizing disability grade in practice,it is suggested that we adopt the comprehensive criteria,the specific application of which is also considered.Then,in view of the interested parties’ lacked expectations for the amount of compensation for mental damage,the author discusses the paths for discretion of the amount of such compensation,and suggests case classification-based thinking and rules for adjudication,and establishment of the parties’ reasonable expectations based on mature rules of adjudication formed through a lot of judicial practice.In the end,the author calls for reinforced application of the property accountability for mental damage compensation and increased money relief to victims so as to adapt to characteristics of the society of strangers today.