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Ⅳ Requisites to constitute a compensation liability
There is no difference in principle on requisites between the responsibilities of compensation for mental injury and for property damage, for both belong to the compensation for damages. So the establishment of the responsibility of compensation for mental injury should also meet the following requisites: firstly, there must be harmful consequences, namely victim’s civil rights and interests, such as right of personality etc., were infringed upon and caused “damage of non-property”, including spiritual and physical pain; and secondly, there must be infringing facts that encroach illegally upon the personality, rights and interests of status of a natural person. The criterion to judge illegality involves two aspects: one is the direct encroachment upon the legal right of a citizen; the other is infringement upon a citizen’s lawful interests of personality in the form of violating the public interest or social ethics (“public order or good morals”); thirdly, there must be causal relationship between the infringing fact and harmful consequences; and finally, there must be subjective deliberate intent or negligence of infringer, except as otherwise stipulated by law. If the conditions above-mentioned have been satisfied, the infringer shall assume consequential civil responsibility including cessation of infringement, rehabilitation of reputation, elimination of ill effects or extension of apology. But if there has no serious outcome occurred, the court shall not accept the victim’s claim for compensation of mental damage. In case when serious consequences have been caused, the court may award soothing money for mental injury to victim at demand of him.
Ⅴ Confirming amount of compensation
Mental injury is an invisible damage and is unmeasurable essentially. Pecuniary redress does not mean to give a market price to mental damage, for there is no pecuniary exchange at equal value between them. But from the national development level on economy and culture, and the general concepts of value of society, a subjective evaluation may be made in the light of the degree and outcome of mental injury from judicial point of view, namely, letting the collegial panel of the court exercises its discretionary power to decide compensation amount according to the concrete details of a case. However, in order to reduce the subjective and arbitrary discretion as far as possible, the “interpretation” stipulates some principles in article 8 and 10. In article 8 it states that compensation for mental injury is merely one of the forms that bear civil responsibility, only when other forms of civil liabilities do not remedy enough the victim’s mental damage can pecuniary redress be considered to use. Article 10 also makes some principles to factors that should be considered on determining smoothing money:
(1). fault degree of infringer, except as otherwise stipulated by law;
(2). concrete circumstances of infringing means, occasions and behavior patterns;
(3). consequences caused by infringing act;
(4). profit that infringer earned;
(5). economic capacity that infringer assumes liability;
(6). average living standard where the hearing court is located. 19
Among the factors mentioned above the fifth is liable to arise arguments. Some argue that the direct consequence that taking the economic capacity as the basis of compensatory payment for mental damage would result in such circumstances: if infringer is rich, more money would be paid; if infringer is poor, no money or less money would be paid, which is contrary to the legal principle of” equality before the law”. As a matter of fact, this argument is one-sided. It is a basic function of civil law to balance the economic interests between parties. Equitable liability principle in civil law is such a legal provision that authorizes judges, in view of fair consideration, to consider carefully the both economic conditions of infringer and victim and decide whether infringer to compensate part or all damages of victim, and in this way to recover interests equilibrium between parties. Mental damage has many characteristics different from those of the property’s, one is that the mental damage is invisible and could not be judged whether it is fair or not merely on payment amount. The other is, from the function of soothing money for mental damage, whether or not a victim feels satisfied spiritually does not rely usually on the absolute amount of pacified money. So long as infringer is to be punished the victim can surely be pacified. If the amount of soothing money decided by a court to victim has far surpassed the paying ability of infringer, victim will not receive compensation actually, which will also not play a soothing role to victim.
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