旁观者精神损害赔偿制度分析——以英美法的考察为重心-an analysis of the compensation system for spectators mental injury —— focusing on the investigation of anglo - american law.docxVIP

1 1 2 2 Abstract Generally, one bystander may be psychiatrically harmed when he come across his family members or those whom he is close with get severely hurt, and the horrible emotion such as the enormous bitterness, loosing life joy or great anxiety can be much more serious than property damage. The law will go against justness if the bystander isn’t allow to get remedy. However, the tort law shall both protect social safety, personal benefit and respect personal freedom. Since more and more bystander get emotional disturbance cases exists while the court cannot reach a unified way to rescue the damage, it’s time to balance beneficial protection and respect for personal freedom. This article aims to research the “Nervous Shock” of the Commom Law and compromise that with the Civil Law, thus improving Tort Law in our country. Part I gives an brief introduction to ‘Nervous Shock’. There are different explanations about ‘Nervous Shock’ among the scholars in our country. At first, ‘Nervous Shock’ was totally denied, and than it was strictly acceptable. From ‘physical impact rule ’, ‘zone of danger’to ‘forseeabily’,the commow law showed us a whole framework for ‘Nervous Shock’. Part Ⅱ shows us a reasonal basis for the ‘Nervous Shock’ both in practice and in theory. Theoretically, spirit can be turned into property in some way; The theory of ‘Rectification Justice ’holds that personal emotion shall get protected; What’s more, the protection for personal freedom and the protection for emotion can reach a balance when bystander’s emotion can get protection. Practically, with the development of the redirection to behavior in tort law, whether a man shall be entailed liability will never only decided by the traditional obligation theory such as causality theory. If a man goes against certain duty, he can also be punished; Medical improvement also offers a more scientific criterion. Part Ⅲ illumiates the ‘Nervous Shock’ in the Common Law. Negligent Infliction Of Emotional Di