| Explanations by The Supreme People's Court on Certains Questions Regarding The Civil Liability for Compensation for Mental Pain and Suffering Caused by Tortious Acts |
| Friday,January 17,2003 Posted: 11:16 BJT(0316 GMT) |
(Adopted at the 1161 Meeting of the Judicial Committee of the Supreme Peoples Court on February 26,2001. In force as of March 10, 2001; Judicial Interpretation No.7 [2001]) For the purpose of properly determining the compensatory liability for psychological damage in trying cases involving tort, in accordance with the provisions of the General Principles of Civil Law of the People's Republic of China and in combination with experience in trials, the issues concerned shall be interpreted as follows: Article 1 Where any natural person brings a lawsuit to the people's court for psychological damages based on an illegal infringement of any of the following personal rights, the people's court shall accept the case. (1) the rights of life, health and body (2) the rights of personal name, portrait, reputation and honor (3) the rights of personal dignity and freedom Where, in violation of public interests or social ethics, other persons' privacy or other personal interests are encroached, the victims thereof may bring a lawsuit based on tort to the people's court for psychological damages, the people's court shall accept the case Article 2 Where any illegal act causes a ward breaking up the guardianship and thus results in serious damage of the parenthood or the relationship between near relatives and the guardian therefore brings a lawsuit to the people's court for psychological damages, the people's court shall accept the case. Article 3 If after the death of a natural person, any of his near relatives psychologically suffers from any of the following torts and therefore brings a lawsuit to the people's court for psychological damages, the people's court shall accept the case: (1) use of insults, libel, disparagement or smear, or any other means in violation of public interests and social ethics, infringing upon the right of name, portrait, reputation or honor of the deceased (2) illegal disclosure or use of the privacy of the deceased, or any other means in violation of public interests and social ethics, infringement upon the privacy of the deceased (3) illegal use or damage of the remains of the deceased, or any other means in violation of public interests and social ethics, encroachment on the remains of the deceased Article 4 Where any particular souvenir or symbol of personal dignity is permanently destroyed or damaged due to illegal encroachment and the owner of the object brings a lawsuit to the people's court for psychological damages based on tort, the people's court shall accept the case. Article 5 Where any legal corporation or other organization brings a lawsuit to the people 5 court for psychological damages against infringement on personal rights, the people's court shall not accept any such case. Article 6 Where the suing party fails to claim psychological damages in a case involving tort. however. after judicial proceedings have ended, brings another action for psychological damages based on the same facts of ort the people's court shall not accept any such case. Article 7 Where death is caused to any natural person due to tort, or any natural person's dignity or remains are encroached upon after his death and his spouse, parents and children therefore bring a lawsuit to the people's court for psychological damages, the spouse, parents and children shall be listed as the plaintiff; where the deceased has no spouse, parents or children alive, his near relatives may bring an action and the near relatives shall be listed as the plaintiff. Article 8 Where psychological damage is incurred due to tort but no serious consequence is caused, the victim's plea or psychological damages in general shall not be granted; the people's court may, according to the specific circumstances, order the encroaching party to terminate their act, restore the victim's reputation, eliminate the impact and make apologies. Where psychological damage is incurred due to tort and serious consequence is caused, the people's court may apart from deciding that the encroaching party bear the civil liabilities such as terminating their act, restore the victim's reputation, eliminating the impact and making apologies etc., decide and order them to cay psychological damages for consolation based on the victim's plea. Article 9 Psychological damages for consolation consist of the following categories: (1) damages for disability where disability is incurred to another person (2) the damages for death where the death of another person is caused (3) other forms of psychological damages for consolation Article 10 The amount of psychological damages shall be decided according to the following factors: (1) the seriousness of the encroacher's fault except otherwise provided for by law (2) the specific means, circumstances, modes of act of the encroachment (3) the consequences caused by tort (4) the benefits gained by the encroacher (5) the economic capability of the encroacher to bear liability (6) the average living standard of the region where the people's court handling the case is located Where damages for disability and death, etc, are explicitly prescribed by laws or administrative regulations, the relevant provisions of the laws and administrative regulations shall apply. Article 11 Where the victim bears fault to the facts and consequences of a damage, the encroacher's liability for psychological damages may be mitigated or exempted in accordance with the seriousness of his own fault. Article 12 If there is any contradiction in wording between this Interpretation and the judicial interpretation that is previously in effect before this Interpretation is promulgated for implementation, this Interpretation shall prevail. Endnotes |
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