Abstract: In tort law, compensation for mental damage is an important content. The State Compensation Law is a special tort law, which should include compensation for mental damage. The mental damage caused by state infringement refers to the physical and mental pain caused by the obstacles in the spiritual activities of natural persons caused by state infringement. China's state compensation law should establish a compensation system for mental damage caused by state infringement. The scope of compensation for spiritual damage caused by state infringement should include compensation for infringement of material personality rights and compensation for infringement of spiritual personality rights; The principle of "monetary compensation as the main compensation, supplemented by spiritual compensation" should be established in the compensation for mental damage caused by state infringement, and two methods should be adopted to calculate spiritual consolation money: "different damages and different compensation" and the maximum compensation limit.

Keywords: state infringement, mental damage, compensation

In recent years, compensation for mental damage has been a hot and difficult issue in theoretical circles. Many scholars advocate the establishment of mental damage compensation system in the state compensation law. The key problem lies in how to understand the state tort mental damage compensation, how to bring it into the state compensation responsibility system, and what kind of state tort mental damage compensation system to build. The research on the above problems in the existing works is slightly weak and there are many differences. This paper will try to discuss several basic problems of the compensation system for mental damage caused by state tort, and on this basis, combined with the revision of the state compensation law, construct the compensation system for mental damage caused by state tort in China.

First, the definition of compensation for mental damage caused by state infringement

The concept of obtaining monetary compensation for mental damage has been accepted by most countries and regions. According to the different causes and behaviors that lead to mental damage, mental damage can be divided into civil tort mental damage and state tort mental damage. The mental damage of civil tort exists between civil subjects with equal status, which refers to the mental pain caused by one civil subject infringing on the personal rights of another. Of course, mental damage not only occurs in the civil field, but also may occur in public power activities, which is what we usually call mental damage caused by state infringement. To be exact, the mental damage caused by state infringement refers to the physical and mental pain caused by the infringement of the personal rights of natural persons by state infringement, which leads to obstacles in their mental activities.

The responsibility of the state for the mental damage caused by its infringement is the compensation for the mental damage caused by the state infringement. There are three elements of compensation for mental damage caused by state infringement: first, state infringement. State tort is relative to civil tort, which refers to the behavior that state organs and their staff perform or fail to perform their duties and obligations. "Performing duties" is a concept with rich connotations, which includes not only acts of exercising power and non-power acts, but also legal acts and factual acts, as well as acts and omissions. Second, mental damage. The premise of the state's liability for compensation for mental damage is that the state's tort has caused mental damage to the other party. Broadly speaking, mental damage refers to all states of loss of mental interests, including not only mental unhealthy states such as disorder, loss, pain, anxiety and incapacitation, but also property interests lost as a result. Spiritual damage in a narrow sense is limited to the loss of pure spiritual interests, that is, non-property losses. At present, the narrow sense is a general theory. Third, causality. In the theory of civil law, causality is the causality between objective things. It is believed that a certain reason has a certain result in a specific situation, and the causal relationship between the two cannot be determined. Only under normal circumstances, according to the local concept at that time, it is generally believed that the same result can occur, and then the causal relationship can be determined. "Causality in state compensation is essentially the relationship of rights and obligations between state organs and victims. As long as the state organ violates the specific obligations to the obligee and thus causes damage to it, and the obligee cannot obtain compensation by other means, we believe that there is a causal relationship in the state liability for compensation. " "Only the cause directly related to the damage result is the cause in the causality of liability for compensation." This analysis is also applicable to the field of compensation for mental damage caused by state infringement.

China's current "State Compensation Law" does not stipulate compensation for mental damage caused by state infringement. Article 30 of the State Compensation Law stipulates the legal responsibilities that state organs and their staff should bear when they infringe citizens' right of reputation and honor. According to the provisions of this article, if the organ liable for compensation illegally exercises its functions and powers and causes damage to the victim's right of reputation and honor, it shall eliminate the influence, restore its reputation and apologize to the victim within the scope of the infringement. [ 1]

Second, the basic problems of compensation for mental damage caused by state infringement

(A) the scope of compensation for mental damage

Article 1 of the Interpretation of Compensation for Mental Damage published by the Supreme People's Court stipulates: "If a natural person is infringed by the following personality rights and brings a lawsuit for compensation for mental damage to the people's court, the people's court shall accept it according to law" [2]: (1) Right to life, health and body; (two) the right to name, portrait, reputation and honor; (3) the right to personal dignity and personal freedom. ""if the victim violates public interests or social morality and infringes on the privacy or other personal rights and interests of others, the people's court shall accept it according to law. "This provision has certain reference value for determining the scope of compensation for mental damage in the State Compensation Law.

The state should not compensate the following mental damages: First, the mental damage caused by breach of contract. The laws and precedents of various countries hold a positive attitude towards the mental damage caused by tort and the monetary compensation for the mental damage suffered by the victims. Second, the mental damage caused by the infringement of property rights. Some people think that "the cause of mental damage is not only the damage of personality rights and personal rights, but also the loss of property rights and other legal rights."

(2) Claimants for compensation for mental damage

Which subjects have the right to request the state to bear the responsibility of compensation for mental damage is an important issue in the compensation system for mental damage caused by state tort.

First, legal persons cannot claim compensation for mental damage. According to Article 36 of the General Principles of Civil Law, "a legal person is an organization that has the capacity for civil rights and civil conduct, enjoys civil rights and undertakes civil obligations independently according to law." Legal person is a social organization, which is the fundamental difference between it and natural person. Spiritual activities are unique to natural persons, and legal persons cannot have thinking activities and mental state like natural persons, nor can they cause mental pain and suffer mental damage. Moreover, China's judicial circles also believe that legal persons have no right to claim compensation for mental damage. As early as 1993, the Supreme People's Court explicitly denied the legal person's right to claim compensation for mental damage in "Answers to Several Questions on the Trial of Honorary Cases". Article 5 of "200 1 Interpretation of Compensation for Mental Damage" also clearly 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 violated, the people's court will not accept it." If the legal person's claim for compensation for mental damage is recognized in the state compensation law, it will lead to the disunity of state laws. Therefore, a legal person or other organization cannot be the claimant of compensation for mental damage caused by state infringement.

Second, the deceased can't claim compensation for mental damage. Generally speaking, in the field of civil law, the deceased cannot be the subject of damages. The deceased has no capacity for civil rights, so naturally he can't be the subject of civil legal relationship, and certainly he can't be the subject of compensation for mental damage. The law endows citizens with civil subject status, the purpose of which is to enable citizens to participate in civil legal relations, enjoy rights, undertake obligations and safeguard their legitimate rights and interests. The civil subject in law is based on the existence of citizens' personality rights, and "personality" is an interest protected by law, including the life, body, health, freedom, dignity and reputation of natural persons. The personality of a natural person is destroyed based on death, and the infringement of the legal interests of his personality before his death by the actor has no harm or damage to the deceased. Therefore, the deceased cannot claim compensation for mental damage.

(three) the way of compensation for mental damage and the determination of mental consolation money.

In form, mental damage is intangible damage, and it is difficult to calculate it accurately by quantitative method. The most difficult problem in establishing compensation system for mental damage is the determination of compensation amount. Bells pointed out: "Obviously, the value of pain cannot be accurately calculated. It is often difficult to determine how much pain the plaintiff actually suffered, so it is not clear how much compensation should be paid. " [3] Compensation for mental damage has different names in different countries. It is called "monetary compensation" in German civil law, and it is often called "pain money" in law and theory. In Swiss law, it is called "solatium" or "solatium paid by money". No matter how it is called, it refers to a certain amount of money paid to the victim by the court in a case of compensation for mental damage, with the purpose of comforting the victim's mental pain and properly compensating his losses. There are several principles for determining compensation for mental damage abroad: (1) Discretion principle. There is no uniform compensation standard, but the court will judge according to the specific circumstances of the case. In common law courts, judges usually decide the specific amount of compensation according to specific cases. (2) The principle of proportional compensation. Standardize the amount of pain and suffering compensation by determining a certain proportion of related medical expenses. The amount of compensation for pain and suffering in Germany is estimated according to the value of medical expenses. (3) Standard compensation principle. Determine the daily compensation standard. For example, the Danish court ruled that the daily compensation standard was 25 Danish marks for hospitalization and no hospitalization 10.

We believe that when determining the amount of compensation for mental damage in China, we should not only refer to some foreign practices, but also build some guiding principles according to the characteristics of mental damage in combination with China's reality. The following principles can be used as legislative reference: 1, sympathy first, compensation second [30]. This principle is determined by the nature and function of compensation for mental damage. Mental damage is different from other forms of damage and cannot be measured by monetary equivalent, so the amount cannot be too high. But the amount should not be too low, otherwise it will not play a soothing role. 2. The principle of judge's discretion. This is the basic principle to determine the amount of compensation for mental damage, and gives judges the discretion to determine the specific amount when dealing with cases of compensation for mental damage. Although many scholars and judges have put forward many standards and methods for quantification or reference, in many cases, it is still difficult to quantify or accurately quantify. 3. The principle of comprehensive consideration and differential treatment. On the basis of the principle of judge's discretion, when determining the amount of compensation for mental damage, we must comprehensively consider the related factors of mental damage and treat different individuals and different interest factors differently. According to different characteristics and different units, the individual compensation amount is calculated and the total compensation amount is finally determined. Carrying out the principle of comprehensive consideration and differential treatment is conducive to overcoming the unfavorable factors of the principle of discretion. Generally speaking, the determination of the amount of compensation for mental damage in China (including the field of civil law) is still in the exploratory stage at this stage, and a generally accepted calculation method has not yet been formed.

Three. Suggestions on amending the State Compensation Law

It has become an academic knowledge to establish the compensation system for mental damage caused by state tort. Academic circles have different views on how to stipulate the compensation system for mental damage in the State Compensation Law. The first point of view is that this problem can be solved by simply amending the State Compensation Law and adding "except in accordance with these provisions, the provisions of the civil law shall apply" [4], which may be more flexible and can be adjusted at any time to adapt to social development. The second view is that special provisions should be added to the state compensation law to stipulate compensation for mental damage. In my opinion, it is too simple to add "in addition to these provisions, the provisions of the civil law shall apply" to the State Compensation Law, and the specific amendment should be:

State organs and functionaries of state organs who illegally exercise their functions and powers or infringe upon citizens' personality rights due to defects in the establishment or management of public facilities have the right to receive spiritual consolation money.

If the infringement causes mental damage to people and causes serious consequences, the organ liable for compensation shall not only eliminate the influence, restore reputation and apologize for the victim, but also compensate the corresponding mental comfort money according to the victim's request.

If a legal person or any other organization requests spiritual consolation money on the grounds that personal rights are infringed, it shall not be supported.

References:

[1] Tong Rou: Answers to Difficult Questions of General Principles of Civil Law in People's Republic of China (PRC) (First Series), China University of Political Science and Law Press, 1986, p. 42.

[2] Wang Zhimin's "On Compensation for Spiritual Damage Caused by State Tort", Journal of Political Science and Law,No. 1 2004,No. 17.

[3][ America] Michael d? Principles of Law-Normative Analysis, translated by Zhang Wenxian, China Encyclopedia Publishing House, 1996, p. 3 18.

[4] Yu Fusheng's "Construction of National Tort Compensation System for Spiritual Damage", Journal of Xinyang Normal University (Philosophy and Social Sciences Edition), No.36, 2003.