|
In addition, the average living standard at the place where the accepting court is located shall also be considered when determining the compensatory amount. In view of the unbalanced development in economy and culture in various places of China, the “interpretation” does not provided the concrete standard to compensation payment. In judicial practice some courts and local legislatures have made some provisions on the amount of compensation money. For instance, the Beijing municipal higher court sent out a notification in 2000 titled the Circular of Printing and Distributing the Handling Opinion on Some Issues Concerning the Trial of the Case in Respect to Physical Injury which states:
Where bodily disability is caused, the court may decide, at request of victim, infringer to pay for some pacified money to victim according to the circumstances of bodily and spiritual damage the victim has suffered. The amount of payment may be determined at the judge’s discretion in the light of disability degree of the victim and fault degree of infringer. If disability is caused, the compensatory amount shall not surpass generally five times of local average yearly pay of staffs and workers in the previous year.
Where decease is caused, the compensation money for death shall be paid at the request of the deceased’s close relatives who claim that the death of victim has caused spiritual suffering to themselves. The maximum amount of compensation money shall be ten times as much as the annual average wage of the staffs and workers in Beijing municipality in the preceding year. (the annual average wage of the staffs and workers in Beijing municipality in 1999 is 13,778 yuan).20
The superior court of Sichuan province also issued in September 2003 a document titled the Opinion on Carrying Out and Implementing the Interpretation of the Supreme People’s Court on Some Issues of Determining Liability for Mental Suffering Caused by Tortious Act in which it provides:
In the case of infringing upon material right of personality the maximum amount of compensation for mental suffering shall not exceed 100,000 yuan; and infringement upon spiritual right of personality the compensation amount for mental suffering shall be 500 to 50,000 yuan.21
In some provincial local statutes there have also been provisions with respect to compensation for mental injury. For example, in the Measures of Guangdong Province on Implementing the Law of the People’s Republic of China on Protecting Consumers’ Rights and Interests it provides in article 31 that:
Business operators who have, by means of violation or other acts, openly insulting consumers or slandering consumers with fabricated facts, searching the body of consumers and the goods they carried and infringing upon the consumers’ personal dignity or personal freedom shall stop such infringements, restore consumers’ reputation, eliminate the bad effects, make apologies and pay more than 50,000 yuan for mental sufferings. 22
All these local stipulations concerning mental damage compensation are linked to the development level of local economy and culture.
Ⅵ Mutual coordination between laws, regulations and judicial interpretation.
The “interpretation” provides that pacified money for mental suffering includes the following forms:
1. in the case of disability, disability compensation shall be paid;
2. If death results, compensation for death shall be paid; and,
3. spiritual pacified payment shall be paid under other injuring circumstances.
The purpose of present provision is to act in coordination with other civil laws and regulations. In China, up to the present there have not been explicit provisions with respect to compensation for mental suffering in legislation. But in some enacted laws there have been stipulations involving compensation payment which have the nature of pacified money. For instance, in the Law on Protecting Consumers’ Rights and Interests it provides in article 41 that:
|
