I. Provisions on this subject.
1. If a natural person dies due to tort or his personality or remains are infringed after his death, the spouse, parents and children of the deceased shall have the right to claim. The reason is:
(1) The "mental damage" of natural persons is manifested as mental pain and physical pain in a positive sense, and the loss of consciousness and mind in a negative sense. The former can make up for the damage by stopping the infringement, restoring the reputation, eliminating the influence and apologizing. If these methods are still not enough to make up for the damage suffered by the victim, the victim should be comforted by means of monetary compensation to make up for the damage; Negative mental damage can only be remedied through monetary compensation, and it is not suitable for remedies such as apology.
⑵ Monetary compensation for "non-property damage" not only has the function of filling the damage, but also has the function of punishing its behavior and adjusting the interests of the parties. This determines that the compensation system for mental damage has the characteristics of limitism. Restriction theory limits the scope of compensation for "non-property damage" to natural persons as the subject and personality rights and identity rights as the object, which embodies the basic values of people-oriented in modern society.
2. If a legal person or other organization requests compensation for mental damage on the grounds that civil rights such as personal rights have been infringed, the people's court will not support it. Article 5 of the Supreme People's Court's Interpretation on Several Issues Concerning Determining the Liability for Compensation for Spiritual Damage in Civil Torts stipulates: "If a legal person or other organization brings a lawsuit for compensation for mental damage to the people's court on the grounds that personal rights have been infringed, the people's court will not support it."
Second, the object scope of compensation for mental damage. The Supreme People's Court's explanation on several issues concerning the determination of compensation liability for mental damage caused by civil tort.
According to the General Principles of Civil Law and other relevant principles of civil legislation, starting from the basic value goal of protecting the rights and personal dignity of participants, mental damage will
The object scope of compensation is limited to the case that the relevant civil rights and interests centered on the personality rights and interests of natural persons are infringed. Mental damage is directly and closely related to the unprofitable state of natural person's personality being violated. In addition, starting from the value concept of damage compensation and the legislative value orientation of safeguarding personal dignity,
Generally, the scope of compensation for mental damage is limited to the case where the personal rights and interests of natural persons are directly infringed, and the case where the property rights and interests are infringed is ok.
God damages, in principle, shall not claim damages.
Whether you can claim compensation for mental damage in criminal incidental civil action. The judicial interpretation of the Supreme Court stipulates that claims for compensation for mental damage in criminal incidental civil proceedings shall not be accepted. However, the Interpretation stipulates that a natural person whose personal rights have been illegally violated may request compensation for mental damage from the people's court. How to understand the above provisions? On the question of whether you can claim compensation for mental damage in criminal incidental civil proceedings, some people think that the punishment of criminals already includes the spiritual comfort to the victims, and there is no need to pay compensation for mental damage. Moreover, compensation for mental damage in criminal incidental civil action is difficult to operate and execute; Some people think that in the application of law, there is only procedural difference between criminal incidental civil action and independent civil action, and there should be no substantive difference. Therefore, in criminal incidental civil action, the plaintiff should be legally recognized as having the right to claim compensation for mental damage. Criminal law, as a public law, embodies the function of punishing criminals and comforting victims to a certain extent, while civil law, as a private law, protects the personal interests of victims and comforts them with economic compensation, which cannot be substituted for each other. Criminal punishment only represents the punishment of criminals and the protection of social relations by the state, and can not fully realize the soothing function. If the victim requests compensation for mental damage in criminal incidental civil action, it shall be supported.
The main scope of compensation for mental damage is limited to natural persons, and it is determined that the mental damage of natural persons includes positive mental damage, that is, mental pain and physical pain, as well as negative mental damage, that is, loss of consciousness and loss of consciousness. The compensation for mental damage must be limited to the situation where the personal rights and interests are damaged, and the scope of application of the compensation for mental damage cannot be expanded too much. In the field of property right damage, the application of mental damage compensation must have the behavior of infringing on property and damaging the personal interests of the victim. In the field of contract, the form of compensation for mental damage should not be applied, but only in the case of infringement. When criminal proceedings are accompanied by civil proceedings, there is no problem of compensation for mental damage. Finally, the application of compensation for mental damage should be carried out according to law, and the scope of application should not be expanded without legal provisions.
Scope and object of application of road traffic accidents.
In the litigation of personal injury compensation disputes in road traffic accidents, the mental consolation money for personal injury is a civil remedy for mental pain caused by the damage of material personality rights, and the object of protection is the right of citizens not to be traumatized. When a citizen's right to life and health is damaged due to a road traffic accident, he should not only get compensation for property damage, but also pay a certain amount of money to relieve the mental pain and trauma suffered by himself or his close relatives. Therefore, the compensation for mental damage caused by road traffic accidents should be applicable to the following two situations: (1) relief for mental pain and trauma caused by the violation of their right to life. The consequences of violating the right to life lie in the death of the direct victim and the loss of his close relatives. Because road traffic accidents cause the death of the victim, the parents, children and spouses of the victim suffer more mental pain than ordinary rights such as property rights, so we should give a considerable amount of comfort. The "death compensation" in Article 37 of the Measures for Handling Road Traffic Accidents is to comfort the mental pain caused by the close relatives of the victims and compensate the mental damage. (2) Relief for mental pain caused by the violation of the right to health. Road traffic accidents damage the victim's right to health, resulting in minor injuries, serious injuries or total or partial loss of the ability to take care of themselves in work or life, which not only causes physical pain to the victim, but also sometimes causes the loss of some physiological functions of the victim, resulting in lifelong misfortune and even shortened life span. In real life, citizens' right to health will suffer long-term physical and mental pain, even lifelong pain, which is no less than the pain of losing their loved ones. Therefore, those who cause mental pain and trauma to the victims and their relatives should be given mental compensation regardless of whether the victims are disabled or not. Of course, different degrees and different consequences can be considered as different situations to determine the amount of compensation when making compensation for mental damage.
From the above scope of application, as the applicable object of compensation for mental damage in road traffic accidents, that is, the subject of compensation rights, it should include direct victims and indirect victims who have the right to request compensation for mental damage in road traffic accidents.
The direct victim is not only a person with full capacity for civil conduct, but also a person with limited capacity for civil conduct or without capacity for civil conduct (including minors, children, mental patients and vegetarians) can become the subject of compensation rights. As a minor or a child, when suffering personal injuries, they feel little or no mental pain, but when they grow up, they feel great pain when they know things. Therefore, it should be considered that future compensation for mental damage can be obtained now. As a mental patient, in addition to the special circumstances and facts that hinder him from feeling pain, he also has the ability to feel mental pain when he violates the right to health, and he should also be entitled to compensation; Even those who are insane and completely unconscious because of unlawful injury have lost the spiritual benefits of enjoying life in the future, although they have not felt the pain of being hurt. This is also a kind of mental damage, so they should also think that they are entitled to claim compensation now. In addition, if the victim becomes a vegetable, from a medical point of view, it is impossible for him to suffer any mental injury, whether mentally or physically. However, a normal and healthy person has lost this perceptual ability because of being violated, and can't experience the joys and sorrows in life. Although he is alive, he has lost the meaning of this life. Although he can't perceive and intuitively has no positive mental damage, this kind of infringement is actually a negative mental damage. This kind of damage deserves the deep sympathy and moral relief of the whole society, and also deserves legal relief. Therefore, as a person, he has the right to claim compensation for mental damage. When the above-mentioned person with limited capacity for civil conduct or person without capacity for civil conduct (limited to the time of injury) claims civil rights, his agent shall act as his agent.
For indirect victims, some major damages, such as disfigurement, physiological function damage, loss of basic labor ability, etc. It not only brings serious physical or mental pain to the direct victims, but also brings great difficulties and pressure to the victims' family life and mental damage to their close relatives. These indirect victims, such as direct victims who become vegetative, mental patients or lose their basic ability of self-care due to physical disability, need long-term care from their close relatives, live with them and take care of their close relatives for a long time; The sexual rights between husband and wife cannot be realized due to physical impairment, and the mental damage suffered by the spouse or minor whose parents can't get married due to physical impairment should also be compensated. Therefore, indirect victims include not only the close relatives of the victims who died in road traffic accidents (including the parents, children and spouses of the victims), but also the close relatives of the victims who have long-term care obligations. Among them, if the victim dies, the scope of the claimant is limited to the time of the victim's death, including the fetus at the time of the victim's death or close relatives suffering from mental illness.
In addition, the right to claim compensation for mental damage is exclusive to the obligee and cannot be transferred or inherited in principle. This point has been made clear in legislation, but if the amount of compensation has been agreed by both parties or the obligee has filed a lawsuit, it may not be subject to the above restrictions. The agreed amount of compensation or the amount determined by the judgment may be transferred by the creditor to others, and if the creditor dies, it may be inherited by his successor.