Compensation for Mental Injury：An Analysis to A New Judicial Interpretation of the Supreme People’s Court of China (精神损害赔偿：中国最高人民法院司法解释解读)
翟建雄
【摘要】经济的发展和社会文明的进步使人们开始意识到，精神权益同物质权益一样，是人类与生俱来的神圣权利。1986年中国国家立法机关公布了《
民法通则》，该法即设专节规定了“人身权”。《
民法通则》第一次以基本法的形式确认了精神损害赔偿制度，为那些精神权益受到损害的公民寻求精神损害赔偿提供了重要的法律依据。为加强对公民民事权益的司法保护，实现司法公正，最高人民法院于2001年发布了《关于
确定民事侵权精神损害赔偿责任若干问题的解释》，该解释对精神损害赔偿问题作出了详细规定，本文试对该司法解释作一解读。
【关键词】精神损害赔偿
【全文】
Compensation for Mental Injury:An Analysis to A New Judicial Interpretation of the Supreme People’s Court of China
By Zhai Jianxiong
Table of contents
ⅠIntroduction 2
Ⅱ Scope of compensation for mental injury 3
1. right of personality 3
2. Interests of personality. 5
3. specific status right 6
4. extending protection to the rights and interests of personality 7
5. specific property right linking to spiritual interests 7
Ⅲ Subject of procedure 8
Ⅳ Requisites to constitute a compensation liability 10
Ⅴ Confirming amount of compensation 10
Ⅵ Mutual coordination between laws, regulations and judicial interpretation. 13
Abstract:
The development of economy and progress of social civilization have made people become aware of that the spiritual rights and interests are also a sacred right that is born with the human being except those material ones. In 1986, China’s national legislature promulgated the General Principles of the Civil Law in which a special section on personal rights was included. This law confirms for the first time the compensation system for spiritual damage in the form of basic law. Thus it offers an important legal base for those citizens whose mental rights and interests were infringed upon by tortious act to claim for mental injury compensation. In order to strengthen the judicial protection of citizen’s civil right and interests and strive to come up with judicial impartiality and fairness, the Supreme People’s Court issued in 2001 the Interpretation on Some Issues of Determining Liability for Mental Suffering Caused by Tortious Act, which made some detailed provisions on the issues of compensation for mental injury. This paper will make an analysis to this judicial interpretation.
ⅠIntroduction
The definition concerning mental injury is various. In the Oxford Companion to Law it reads: Shock (or mental injury), this is now recognized as an actionable harm as much as physical injury. For this purpose, shock is not merely a fright but identifiable physical and / or mental lesion brought about, not by physical impact but through the mind, by what has been seen, heard or otherwise experienced.1
The Black’s Law Dictionary uses the word emotional distress and writes: emotional distress: a highly unpleasant mental reaction (such as anguish, grief, fright, humiliation, or fury) that results from another person’s conduct; emotional pain and suffering. Emotional distress, when severe enough, can form a basis for the recovery of tort damage.— Also termed emotional harm; mental anguish; mental distress; mental suffering. 2
The Chinese scholar Yang Lixin gives his definition to mental injury as follows: The compensation for spiritual damage is referred to a civil legal system that a civil subject, if his or her personal right is infringed upon by a unlawful infringement which caused invisible damage to his personality and status interests or mental suffering, may seek redress and protection by claiming the infringer to compensate his damage with property.3
