Study On The Judicial Application Of The System Of Compensation For Mental Damage In Incidental Civil Action

For a long time,the practice of not supporting compensation for mental damage in incidental civil litigation in China has been widely criticized by scholars.The second Paragraph of Article 175 of the Interpretation of the Supreme People’s Court on the Application of the Criminal Procedure Law of the People’s Republic of China(hereinafter referred to as the Interpretation of the Criminal Procedure Law)revised in 2021 stipulates:"If an incidental civil lawsuit or a separate civil lawsuit is filed for compensation for mental losses due to criminal infringement,the people’s court generally shall not accept it,The provision has added the words "general" before "inadmissible",which is a positive response to some scholars’ claim that compensation for mental damage should be supported in incidental civil litigation.At the same time,it also reserves space for supporting compensation for mental damage in incidental civil litigation in judicial practice.After the implementation of the Interpretation of the Criminal Procedure Law in2021,there have been some criminal cases in China that explicitly support the demand for compensation for mental damage.In the face of exploration in judicial practice,theoretical research should be followed up in a timely manner and actively play a corresponding guiding role.Through empirical analysis of whether there is support for mental damage compensation claims in incidental civil litigation cases,it can be found that there is a lack of attention to the relevant changes in the interpretation of existing criminal proceedings in current judicial practice,confusion in the legal basis used to support mental damage compensation claims,and different or even completely opposite judgment results in similar cases.The reason for this is that legislation lacks support for compensation for mental damage in incidental civil litigation,the number of similar cases in judicial practice is relatively small,and factors such as the cautious attitude of judges in judging cases under the judicial responsibility system affect the judgment results of cases.The reasons for changing the traditional stance of not supporting compensation for mental damage in current legislation mainly include the need to comply with contemporary legal concepts,the need to protect the legitimate rights and interests of victims,the untenable theory of "double evaluation",and the pursuit of litigation efficiency without sacrificing fairness and justice.The current cases supporting compensation for mental damage in incidental civil litigation are mainly concentrated in traffic accident cases and sexual assault cases against minors.In these two types of cases,the factors considered by judges mainly include the possibility of civil judgment execution,the subjective malignancy of the defendant,the protection of minors’ rights and interests,and the location of the court.Based on the aforementioned research,the ways in which the system of compensation for mental damage in incidental civil litigation can be implemented in the judiciary are:gradually exploring the scope of cases that support compensation for mental damage;In supporting cases of mental damage compensation,attention should be paid to the principles,conditions for filing,compensation subjects,compensation standards,and other issues of mental damage compensation;The Supreme Court should focus on summarizing and releasing typical cases,and strengthening the retrieval of cases related to mental damage compensation in incidental civil litigation,in order to improve the implementation of mental damage compensation,coordinate the relationship between mediation in incidental civil litigation and criminal reconciliation system.