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It is the common sense in Chinese academic world that the initial legal basis for mental injury compensation was laid down by the article 120 of the General Principles of the Civil Law of the People’s Republic of China adapted by the Sixth National People’s Congress in its Fourth Session on April 12,1986. The article 120 states:
If a citizen’s right of personal name, portrait, reputation or honor is infringed upon, he shall have the right to demand that the infringement be stopped, his reputation be rehabilitated, the ill effects be eliminated and an apology be made; he may also demand compensation for losses. 4
This provision has often been cited by the courts as the trial basis for determining the liability of compensation for mental injury in the judicial practice afterwards.
Since the General Principles of the Civil Law was promulgated the cases involving compensation for mental damage have increased dramatically. But intheory and practice many questions such as what is mental injury, what civil rights and interests infringed upon can claim for spiritual damage compensation, who are entitled to bring a suit to the court for mental damage compensation, and how to define the amount of money for compensation, etc. have long been controversial, which also lead to the judgments discordant in courts in different regions across the country due to the diversity of judges in their understanding the law. These phenomena also have an impact on the fairness, earnestness and authoritativeness of the justice and the balance and unity of judicial protection to all citizens. In order to strengthen the judicial protection to citizen’s civil rights which is cored with moral rights and realize judicial fairness and safeguard personality, the Supreme People’s Court issued, on the basis of summarizing judicial experiences and soliciting opinions from various circles, a judicial interpretation titled the Interpretation of the Supreme People’s Court on Some Issues of Determining Liability for mental Suffering Caused by Tortious Act 5（hereinafter referred to as the “Interpretation”）on 8 March 2001 which confirms that certain amount of money may be a remedial measure to mental injury.
ⅡScope of compensation for mental injury
There has long been a debate in judicial practice on what civil rights and interests infringed up the victim can claim for mental damage recompense. The consequences of a tortious act, according to the basic theory of tort law, include two forms: damage of property and non-property. The former refers to the decrease of property and loss of prospect interest, and the latter refers to mental suffering and physical pain that has no property value, known as “mental injury”. Spirit and body constitute the essential elements of the personality of a natural body, and are also the psychological and physical basis on which a natural person enjoys his personality rights and interests. So the Interpretation, in accordance with the principled provisions of the General Principles of the Civil Law and proceeding from the goal of protecting the basic worth of personal right and personality, defines the scope of compensation for spiritual damage as follows:
1. right of personality
Personality refers to the dignity and value of human being. It usually involves natural and social attributes. The former includes human’s life, body and health and the latter, contains reputation, honor, name, portrait, personality, and personal freedom, etc. These inherent personality interests that are indispensable from the body of a specific civil subject are defined as the right of personality when they are confirmed by the law as civil rights. In the past, the compensation for mental injury was only limited to right of name, portrait, reputation and honor described by article 120 of the General Principles of the Civil Law. But the Interpretation expands the protective sphere of mental injury to moral right. In the first article it states:
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