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On the Compensation for Mental Damage Due to Death by Infringement

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Legislation of Tort Liability Law in China

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Abstract

In the case where the death is caused by injurious action or quasi-tort (hereafter referred to as case of death by infringement), it is an array of issues far from being resolved on paper and in legislative or judicial practice in terms of whether the victim can claim compensation for infliction of mental damage, in which types of cases of death by infringement who can claim the compensation, what are the compensation standards and how is the distribution of compensation once one manages to obtain it.

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Notes

  1. 1.

    Article 143–147 of the Several Issues of the Supreme People’s Court on the Implementation of the General Principles of the Civil Law of the People’s Republic of China (For Trial Implementation).

  2. 2.

    Article 3 of the Notice of the Supreme People’s Court on Trying Civil Cases on Medical Disputes by Referring to the “Regulation on Handling Medical Malpractices” [Expired].

  3. 3.

    Article 18(2) of the Interpretation of the Supreme People’s Court of Some Issues concerning the Application of Law for the Trial of Cases on Compensation for Personal Injury.

  4. 4.

    Article 12 of the Notice of the Supreme People's Court on Issuing the Opinions on Several Issues concerning the Implementation of the General Principles of the Civil Law of the People's Republic of China (For Trial Implementation), article 5 of the Interpretation of the Supreme People's Court on Several Issues about the Trial of Cases Concerning the Right of Reputation, article 7 of the Interpretation of the Supreme People’s Court on Problems regarding the Ascertainment of Compensation Liability for Emotional Damages in Civil Torts.

  5. 5.

    Article 7 of the Interpretation of the Supreme People’s Court on Problems regarding the Ascertainment of Compensation Liability for Emotional Damages in Civil Torts.

  6. 6.

    Article 12(2) of the Interpretation of the Supreme People’s Court of Some Issues concerning the Application of Law for the Trial of Cases on Compensation for Personal Injury.

  7. 7.

    Zhang (2007a).

  8. 8.

    Zhang (2005a).

  9. 9.

    Guan (1996).

  10. 10.

    Zeng (2001).

  11. 11.

    Hu (2003) and Yang (2004).

  12. 12.

    Zhang (2005b).

  13. 13.

    Christian Von Bar (2001).

  14. 14.

    Different opinions in academia: some scholars advocate that state compensation should also include the application of the liability form of compensation for mental distress. See Yang (2005).

  15. 15.

    The Chinese word “Sheng Qian (生前)” cannot be understood literally, because its definition is precisely opposite to its literal meaning: it does not mean “before birth” but “before death” or “before death happens”. The word has reflected the taboo in the nation’s mentality and belongs to conventional usages.

  16. 16.

    Ghotra v. Bandila Shipping, Inc. (1997), 113 F. 3d 1050; and Beynon v. Montgomery Cablevision Ltd. Partnership (1998), 718 A. 2d 1161.

  17. 17.

    Chapter VI Article 95 of the Dutch Civil Code; and article 2059 of Italian Civil Code.

  18. 18.

    Zeng (2001), 315–316.

  19. 19.

    Wang (1998).

  20. 20.

    Yu (2006).

  21. 21.

    For detailed interpretation of “malice”, see Zhang (2007b).

  22. 22.

    Zhang (2007c).

References

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  1. Renmin University of China Law School, China Legal Science Journals Press, Beijing, China

    Xinbao Zhang

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  1. Xinbao Zhang
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Zhang, X. (2018). On the Compensation for Mental Damage Due to Death by Infringement. In: Legislation of Tort Liability Law in China. Springer, Singapore. https://doi.org/10.1007/978-981-10-6961-1_17

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  • DOI: https://doi.org/10.1007/978-981-10-6961-1_17

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