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The so-called compensation mentioned here also means the compensation to spiritual damage.
4. extending protection of the interests of personality
According to the traditional theory of civil law, a natural person shall have the capacity for civil rights from birth to death. A deceased has no capacity as a civil subject and do not enjoy civil rights, of course, has no moral rights, too. But, since there has been particular personal relation between close relatives, when a natural person dies, his personality elements still have an impact on his spouse, parents, children and other near relatives and constitute the important content of mental interests of persons alive. Therefore, any infringement upon the personality of a deceased, in fact, is the direct injury to the spiritual interests and personality of the dead’s spouse, parents, children and other near relatives. Infringing act in this type also belongs to the tort of contravening “public order or good morals”. The tortious aftermath can be expressed in the form of emotion wound, mental suffering or capitis diminutio. In the past the Supreme People’s Court only issued a judicial interpretation pertaining to the protection of reputation (Interpretation of the Supreme People’s Court on the Trial of the Case Concerning the Right of Reputation, 15 issued in 1998), but this time the interpretation extends the protective scope of natural person’s reputation to other personality essential elements including name, portrait, honour, privacy and the deceased’s remains. The real purpose of interpretation aims at protecting the personality and spiritual interests of persons alive.
5. specific property right linking to spiritual interests
The compensation for mental damage is limited, in principle, to the infringements of moral right and status right, but in some circumstances it also applies to infringed property right. In trial practice there have been strict conditions on handling this kind of case. Firstly, the infringed object should be the commemorative materials which imbue with spiritual interests and great emotion worth and possess symbolic significance of personality. Secondly, the said memorial has been permanently destroyed or lost by injurious act and this damage is irreversible. Those damages having no requisites mentioned above should be compensated with actual property loss in accordance with the general principle of damage laws. In recent years there have some judicial precedents involving memorial broken and causing spiritual injury been decided by Chinese local courts.
In the case Wang Qingyun v. Tangshan Meiyangda Photo Co.,16 the plaintiff is an orphan whose parents died in 1976 Tangshan great earthquake when he was three years old. In 1996 he sent the sole photo of his parents he has to defendant, a local photo studio, for duplication. But the defendant lost the photo. The plaintiff filed a lawsuit against the photo studio on the reason of special thing being damaged and claimed defendant to compensate 100,000 yuan for mental injury. The first instance court holds that:
The defendant’s grave negligence on losing the photo has caused irretrievable economic loss and spiritual suffering to the plaintiff, the defendant shall compensate for the plaintiff’s loss of specific object and part mental damage.
The court decides the defendant to compensate 8,000 yuan for both plaintiff’s specific object loss and spiritual suffering.
In addition, the “interpretation” gives a clear answer to the overlap of tort and default. According to the current law, the contractual liability usually does not contain liability of compensation for mental damage. Therefore, the “interpretation” provides that only when the property owner sues on the grounds of the tort may the court accept his or her claim for compensation of spiritual damage. In order to prevent claimant from abuse of right of action, such as claims for compensation of spiritual injury under the pretext of his or her pet being hurt, the “interpretation” provides that this damage must have symbolic significance of personality.
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