【作者】 崔哲；

【导师】 那力；

【作者基本信息】 吉林大学 ， 法律， 2008， 硕士

【摘要】 随着人们法律意识的提高、维权意识的增强,在司法实践中,当事人请求赔偿精神损害以维护自身合法权益的民事案件近几年来明显增加,但在审判实践中,仍避免不了司法不统一的现象的出现。由于在个案中法官理解不一致,适用法律不统一,影响了司法的公正性、严肃性和权威性。现行的法律、法规已不能满足实践的需要,这势必会影响我国法治建设的进程。本文从六个方面对精神损害赔偿制度进行了探讨。笔者首先从精神损害赔偿的性质和法哲理基础出发,通过和国外精神损害赔偿制度的比较,阐述了精神损害赔偿制度对完善我国法律体系的必要性及现阶段在司法务实上的突破。同时,笔者结合我国精神损害赔偿诉讼中的一些热点问题,总结我国现有立法的一些不足之处,在此基础上提出了完善精神损害赔偿制度的若干建议,并进行了论证。更多还原

【Abstract】 The general rule of the civil law of the PRC, the obligations of mental compensation for civil tort, and the issues of laws applicable to cases of compensation for personal injury, which make some regulations for the mental compensation, provide the feasible and unified legal basis to the people court for trialing the case of mental compensation. However, because of the deficiency of the theory and practice in our country’s the mental compensation, the victim’s legal right can’t gain the compensation in the judicial practice. So it is necessary to clarify some basal problems of the mental compensation’s regulation, which can promote the development of the theory, provide the service for the social practice, and help to build the united and perfect regulation of the mental compensation.In this paper, we will discuss the regulation of the mental compensation for six parts.In the first chapter, we mainly discuss the summary of the mental damage and its’compensation regulation. The mental damage also can be named non-pecuniary damage, which is denoted that the inflictor’s tort will cause the victim’s mental sufferings or lose the mental interests. The right in law must have corresponding remedy, which will protect the victim when he was hurt. The spirit and the loss of the mental interests are abstract and intangible, but when the party is damaged in spirit, there are various kinds of the manifestation, and it is objective existing. These damages can be showed the pain in the fresh, or the psychological obstacle and it maybe show the depreciation of the social value. This“compensation”is not only the compensation in wealthy, but also is the compensation which are the material consoling and filling the loss of the mental interest for the victim’s mental pain. As a remedy of the civil rights, the compensation of the mental damages maybe has punitive, and it can warn and sanction for the infringer. Basing on the character and the jurisprudence foundation, the author discusses the legal characteristics of the mental damage compensation and provides the necessity and meaning which are given by the compensation system for mental damages for perfecting our country’s legal system by combining the national conditions.In the second chapter, we discuss the legislative theory and the practice about the regulation of the mental damage compensation in the word. The regulation of the mental damage compensation’s historical development and change is a long process, which includes the rudimentary stage of the ancient law, the formation period of the contemporary law and complete period of the modern law. Because of the difference of the economic development and historical tradition all over the word, there are lots of differences in the regulation of the mental damage compensation, but there also are some resemblances. The author mainly discusses the development course of the regulation of the mental damage compensation by comparing the difference of our country and some developed countries in the duty of the mental damage compensation. At the same time, combining the case of the mental damage compensation in people court, we provide some judicial pragmatic achievements about the regulation of the mental damage compensation in our present: 1. the antecedency breakthrough of the judicial case in the regulation of the mental damage compensation.2. The judicial interpretation has gained some achievements in the regulation of the mental damage compensation.In the third chapter, we discuss the constitutive requirements of our country’s duty of the mental damage compensation. The author believes that the mental damage compensation is a kind of civil liability whose constitutive requirements is the same as the tort liability duty’s, which is that, subjective fault of the doer, the action must be against the law, the truth of the mental damage must be existed, and there are causalities between the illegal activities and the damaging truth. It is also being considered that: the mental damage given by the infringer for the infringement must have those two constitutive requirements and the infringer undertakes the corresponding responsibility. However, because the tort which can cause the mental damage maybe is the general tort or special tort, when analyzing the subjective condition of the mental damage compensation, we must differentially treat.In the forth chapter, we discuss the amount of the mental damage compensation. The author describes from two aspects which include the principle and the degree of the mental damage compensation. Determining the amount of the mental damage compensation is a reference for explaining and operating the amount and method of the mental damage compensation. It is also considered that it is a centralized reflecting of our mental damage compensation’s legal system. Studying this question has a lot of means which includes methodology of jurisprudence and the practical guidance. Comparing the legislation of the determination of the mental damage compensation all over the world, and connecting our country’s practical situation, the author provide some regulations as follows: mainly using consoling, proper disposing, defining and judge’s discretionary right method. For the level of the mental damage compensation, the author considers that the element of the mental damage compensation has the pluralism, liability and difficulty measuring characteristics, which determinates that the law can’t detailed regulate the level of the mental damage compensation basing on determination of the mental damage compensation’s epistemology. For the same case, courts at all levels’methods which determinate the mental damage compensation are very different, even that a same region’s courts are also different. Although the Supreme Court continue summing up experience, modifying and developing the amount of the mental damage compensation by using publishing interpretation, in judicial practice, the judge’s action is too obvious. So when we determinate the level of the mental damage compensation, we should spurn the extravagant hopes to the statute law. We should stand on the colorful practice of the judicial trial and law, and determinate the amount of the extravagant hopes by the judge’s judicial interpretation and the case’s discretion, which can determine the reasonable amount of the mental damage compensation. The level of the mental damage compensation can be determined from three aspects: the level of the victim, the infringer and the objective criterion.In the fifth chapter, we mainly discuss our country’s lawsuit of the mental damage compensation. With the human’s spiritual demand being paid attention to deeper than before, and the theory circle concern the mental damage compensation continuously, which can be observed, the case of the mental damage compensation great emerges. However, because lots of practical issues are lack of the express provision of the law in the case of the mental damage compensation which includes that the range of the mental damage compensation, the lawsuit level of the mental damage compensation caused by the criminal case, and the regulation of the mental damage compensation shows the different situation, which make the same case get different result because of the different court. The author analyzes the characteristics of the mental damage compensation in our country, discusses the hot issue in law circle and provide the own idea: 1. legal person and other organization can become the subject of right in the mental damage compensation. 2. In the civil suit collateral to criminal proceedings, the victim can ask the mental damage compensation. 3. in the administrative litigation, the victim can ask the mental damage compensation.In the sixth chapter, we mainly discuss the legislative defect of our country’s mental damage compensation and proved some proposals for perfecting our country’s mental damage compensation. The social progress and the development of the science which improve the people’s living standard, and at one time, it also increase the possibility which is personal rights and interests is infringed. Our country’s existing regulation of the mental damage compensation increasingly expose its’deficiency, and it need complement and perfect. Building a completely regulation of the mental damage compensation in legislation is a general trend. It is also the necessary preparation for building the healthy market order, and the need and method which shows regarding, respecting and protecting the human right. The author believes that our country’s mental damage compensation is affected the conventional theory, which can’t give the complete method for protecting the human right. The legislation has obvious limitation. It can be described as follows: 1. the subject range of the mental damage compensation is not complete. 2. The object range of the mental damage compensation is too strait. 3. The level of the mount of the mental damage compensation is not uniform. 4. There are some contradiction and conflict between laws of the mental damage compensation. The author believes that our country’s regulation of the mental damage compensation has beening uniform and perfect with the deeper study of the law theory and development of the judicial practice and provides some proposal: 1. deeply study the civil law theory, especial the personal rights, which can make legislation have scientific and rationality. 2. Perfecting the subject of the mental damage compensation. 3. Widening the range of the mental damage compensation. 4. Giving the judge some free discretionary right based on proper basal principle in the amount of the mental damage compensation. 5. modifying and perfecting the related law in time, and resolving the conflict between laws.更多还原