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On the Compensation for Mental Damage of Supplementary Civil Action in Criminal Proceedings

Author: LiNa
Tutor: GaoYiFei
School: Southwest University of Political Science
Course: Legal
Keywords: Incidental civil mental damages Provisions of the irrationality Necessity and Feasibility Obligation of Compensation Calculation of damages The right of free choice of the program
CLC: D925.2
Type: Master's thesis
Year: 2009
Downloads: 501
Quote: 1
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Abstract

With the social development and the enhancement of the awareness of civil rights, criminal incidental civil mental damages issues more and more attention. Looking at the legislative majority gives the criminal victim compensation for moral damage the rights of the world. In China, with the introduction of the General Principles of the Civil Law and related judicial interpretations, the spirit of the damages in the area of ??civil law is widely recognized, however, the criminal field of mental damages due to the influence of the traditional legal concepts, gradually denial and exclusion not only the provisions of the criminal law and civil law there is a serious conflict, but also led to violate basic legal principles, out of the many abuses of the international legislative trends. In this paper, the analysis and comparison of theory with practice and research methods, analysis comparing the difference of the spirit of the fields of civil and criminal damages provisions, the drawbacks of missing examine mental damages in the criminal field, analysis of the basis for mental damages included in incidental civil necessity on, asked the author's point of view, it is recommended to build the incidental civil mental damage compensation system, established the protection of the spiritual interests of the criminal victims, described Feasibility Mental Injury incidental civil action theory, practice and legislative support . Finally, the author discusses the building of the system should focus on a few issues in the design of the system of legal remedies to the criminal victims better. This paper is divided into four parts, in addition to the introduction, epilogue. The first part of the main analysis incidental civil ask for mental damages. The status of legislation in this section take a comparative analysis of the research method, with reference to compensation for the moral damage of the civil realm, examine the criminal area mental damage. Our civil legislation, the system of compensation for moral damage experienced blank, established, further development of the four stages of maturity; mental damages in the criminal area has experienced is not clear, further deny to completely negate the stage, through a civil legislation development process. Exposition of the course of development, the Civil Aspects conform to the trend of international legislation, in accord with the development of the times, has made tremendous progress in protection of the spiritual interests of the people, and exclude the criminal field mental damages should cause reflection. Finally, I can ask whether the incidental civil compensation for moral damage say for sure, and the theoretical dispute between negative theory described. The second part of the analysis of the spirit of the incidental civil damages provisions unreasonable. The part of the practical significance for mental damages provisions in criminal legislation, as well as analysis of the provisions of the unreasonableness of the. Used in this part of the research methods of the causal relationship, incidental civil spirit of the damages unreasonable missing as a result, come to establish fruit incidental civil mental damages necessity; undermine the unification of the rule of law, contrary to the basic legal principles detailed analysis from the front drawbacks, and does not comply with international legislative trends, from a negative that need to establish mental damages incidental civil. The third part is the spirit of damages into the necessity and feasibility of the incidental civil. That this section is divided into two aspects of discourse. First, the need to include unified the need to uphold the rule of law, and the full protection of the needs of the legitimate rights and interests of the victims, the need for international legislation, the inevitable requirement of criminals assume full legal responsibility for their criminal behavior. Feasibility only necessity can not explain the spirit of incidental civil damages whether through theory, practice, feasible, so the part of the feasibility analysis theory, judicial practice and legislation. The fourth part is to build an incidental civil action for moral damage compensation system. The part proposed to build the system should be the focus of attention, expectations for scientific and rational system design, improve the criminal legal remedies of victims. One the compensation obligation main problem, the analysis should include the scope of the obligation of reparation body; mental damages incidental civil computational problems, the factors to be considered, a brief description of the problem and to follow the principles and specific rules. Criminal judgment whether the parties alone to bring moral damage compensation lawsuit, I propose to give the right to freedom of choice of victim program. The author hopes to conduct a comparative analysis of the compensation for moral damages in the civil and criminal legislation, the negative mental damages of Criminal reflection, improvement of legislation of the country, establishing a reference and benefits incidental civil action for moral damage compensation. However, the author is limited, it is inevitable omissions, some of which may not mature enough, hope to play a valuable role civil action for moral damage compensation system that came to China to do a little sponge force.

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