论震惊损害赔偿

最近几年,频频出现的“惊吓费”也就是震惊损害赔偿,震惊损害属于纯粹精神损害的一种,从分类来说属于可证实的纯粹精神损害.在侵权法律空白的情况下,对震惊损害予以救济关乎侵权责任法之目的和精神.本文指出剖析震惊损害的具体类型和构成要件,研究震惊损害的责任限制对我国建立健全的纯粹精神损害赔偿体制具有重大意义.     

论法人的精神损害赔偿

法人与自然人一样 ,有权请求精神损害赔偿 ,其精神损害赔偿的范围应从两个角度进行探讨 ,即从侵权行为所侵害的民事权利角度来看 ,法人的精神损害赔偿应适用于对法人的一切人格权的侵害和部分身份权的侵害 ;从损害利益的角度来看 ,法人的精神损害赔偿范围应该是精神利益的赔偿     

论第三人纯粹精神损害赔偿

第三人纯粹精神损害赔偿制度起源于英国，直到今天已经有了长足的发展，但仍然是民事侵权行为法上一个争议颇多的领域。本文首先对第三人纯粹精神损害进行概念界定，然后分析了第三人纯粹精神损害赔偿制度在我国的立法状况，并提出了立法意见，最后构建了适合我国的第三人纯粹精神损害赔偿制度。     

侵权上纯粹精神损害的界定

《侵权责任法》第22条确立了我国的精神损害赔偿制度,为纯粹精神损害赔偿的研究奠定了基础.如何恰当地界定纯粹精神损害,服务于未来的司法实践是值得思考的问题.本文通过对既有界定方法的逐一分析,归纳出纯粹精神损害应具有的法律特征及其主要类型.     

论精神损害赔偿中的附从性规则——僭越事实的形成、演进与破解

精神损害赔偿中的附从性规则,是精神损害赔偿中颇具独特性的规则。尽管畅行于多国精神损害赔偿实践并起着事实上的基础性作用,附从性规则却一直未能取得与其实际作用相一致的地位。精神损害附从性规则未能反映法律的内在价值,其重要地位的形成,是法律向现实妥协的结果,这注定了其永不可能跃升为精神损害赔偿的基本原则。但当纯粹精神损害的确定成为可能时,对附从性规则的突破就成为大势所趋。正确认识精神损害赔偿的附从性规则,对于《侵权责任法》确立合适的精神损害赔偿范围具有重要意义。     

论精神损害及其赔偿的范围

精神损害就是民事主体侵害自然人、法人的民事权利，造成的自然人生理、心理上的精神活动和自然人、法人维护其精神利益的精神活动的破坏，最终导致精神痛苦和精神利益的丧失或减损。精神损害赔偿的范围，可以从两个角度进行探讨，从侵权行为所侵害的民事权利角度来看，精神损害赔偿应适用于对一切人格权的侵害和部分身份权的侵害；从损害利益的角度来看，精神损害赔偿的范围包括精神利益的赔偿和精神痛苦的赔偿。     

国际航空法中的旅客精神损害赔偿问题探讨

国际航空承运人的严格责任是否包括精神损害赔偿 ,尤其纯粹的精神损害赔偿一直是一个颇有争议的问题。文章分析了《华沙公约》第 1 7条的涵义 ,分别考察了美国、英国和中国的司法实践。 1 999年通过的《蒙特利尔公约》并没有解决这一难题。精神损害可能与身体损害一样对受害者产生严重影响 ,医学发展已经能够证明精神损害实际上是一种身体损害 ,对三种类型的精神损害尤其是纯粹的精神损害给予赔偿是国际航空私法发展的趋势。     

论精神损害赔偿能否适用于违约责任

随着社会的发展,人们越来越重视对精神利益的保护,为因违约而造成守约方精神利益损害提供赔偿救济已成为一种客观趋势。本文尝试通过驳斥对违约精神损害赔偿制度的反对意见,来证明违约精神损害赔偿制度的合理性。     

论合同违约责任中的非财产损害赔偿

在人们对精神利益日益重视的背景下,产生了在违约责任中给精神损害以物质赔偿的迫切需要。有必要将非财产损害赔偿扩展到违约责任中,并在立法中予以明确。必须确立违约责任中非财产损害赔偿的利益衡量与损害限定原则、可预见性原则等,还须正确行使自由裁量权,以平衡合同各方的利益,完善我国的非财产损害赔偿制度。     

精神权益与精神损害探析

精神损害赔偿是民商法理论中最具争议的问题之一。最高人民法院关于精神损害赔偿的司法解释并没有使争议得到解决,反而使该争论变得愈演愈烈。依据最高人民法院的司法解释,笔者认为精神权益包括生理、心理上的感受和状态;精神性人格权益;财产权、身份权中内涵的精神利益等三大内容,并对精神损害即是精神痛苦的法理进行了阐释。主张精神损害赔偿在实践操作中应予扩大化。     

核损害民事责任中的责任集中原则

责任集中是指在有复数责任主体的场合,法律只规定由其中之一承担赔偿责任,而其他责任人则不直接对受害人承担损害赔偿责任的制度。有关核损害责任国际公约以及各国核损害责任立法,均采用这一法律制度。核损害责任法律制度实行惟一责任或责任集中的原则,将核事件的责任全部归结于核营运人,其他任何人包括制造商或供应商等都不承担责任。这一原则充分体现了保护受害人利益和促进核工业发展的指导思想。     

First report from the Swedish National Forensic Psychiatric Register (SNFPR)

To the best of our knowledge, the present register is the only nationwide forensic psychiatric patient register in the world. The aim of this article is to describe the content of the Swedish National Forensic Psychiatric Register (SNFPR) for Swedish forensic patients for the year 2010. The subjects are individuals who, in connection with prosecution due to criminal acts, have been sentenced to compulsory forensic psychiatric treatment in Sweden. The results show that in 2010, 1476 Swedish forensic patients were assessed in the SNFPR; 1251 (85%) were males and 225 (15%) were females. Almost 60% of the patients had a diagnosis of schizophrenia, with a significantly higher frequency among males than females. As many as 70% of the patients had a previous history of outpatient psychiatric treatment before becoming a forensic psychiatric patient, with a mean age at first contact with psychiatric care of about 20 years old for both sexes. More than 63% of the patients had a history of addiction, with a higher proportion of males than females. Furthermore, as many as 38% of all patients committed crimes while under the influence of alcohol and/or illicit drugs. This was more often the case for men than for women. Both male and female patients were primarily sentenced for crimes related to life and death (e.g., murder, assault). However, there were more females than males in treatment for general dangerous crimes (e.g., arson), whereas men were more often prosecuted for crimes related to sex. In 2010, as many as 70% of all forensic patients in Sweden had a prior sentence for a criminal act, and males were prosecuted significantly more often than females. The most commonly prescribed pharmaceuticals for both genders were antipsychotics, although more women than men were prescribed other pharmaceuticals, such as antidepressants, antiepileptics, and anxiolytics. The result from the present study might give clinicians an opportunity to reflect upon and challenge their traditional treatment methods.     

Liability in Negligence for Nervous Shock

Nicholas J. Mullany and Peter R. Handford, Tort Liability for Psychiatric Damage: The Law of ‘Nervous Shock,’     

Qualifying the psychiatrist as a lay witness: a reaction to the American Psychiatric Association petition in Barefoot v. Estelle

Organized psychiatry has recently begun to define limits to expert testimony. The American Psychiatric Association filed an amicus brief in the case of Barefoot v. Estelle urging legal curtailment of psychiatric testimony as to future dangerousness and prohibition on Constitutional grounds of expert psychiatric testimony solely based on hypothetical data. The Supreme Court refused relief on both questions. Psychiatric testimony to ultimate questions at law is limited by the inherent contextual variables of psychiatric clinical and experimental knowledge and practice. A forensic science model for psychiatric participation with explicit psychiatrically defined limitations is proposed using competence to stand trial as an example.     

Competence to Complete Psychiatric Advance Directives: Effects of Facilitated Decision Making

Psychiatric advance directives (PADs) statutes presume competence to complete these documents, but the range and dimensions of decisional competence among people who actually complete PADs is unknown. This study examines clinical and neuropsychological correlates of performance on a measure to assess competence to complete PADs and investigates the effects of a facilitated PAD intervention on decisional capacity. N=469 adults with psychotic disorders were interviewed at baseline and then randomly assigned to either a control group in which they received written materials about PADs or to an intervention group in which they were offered an opportunity to meet individually with a trained facilitator to create a PAD. At baseline, domains on the Decisional Competence Assessment Tool for PADs (DCAT-PAD) were most strongly associated with IQ, verbal memory, abstract thinking, and psychiatric symptoms. At one-month follow-up, participants in the intervention group showed more improvement on the DCAT-PAD than controls, particularly among participants with pre-morbid IQ estimates below the median of 100. The results suggest that PAD facilitation is an effective method to boost competence of cognitively-impaired clients to write PADs and make treatment decisions within PADs, thereby maximizing the chances their advance directives will be valid.     

Psychiatric disorder,IQ, and emotional intelligence among adolescent detainees: A comparative study

Objectives. To document criminality, psychiatric difficulty, IQ, EQ, and EI amongst Irish, male juvenile detainees (Detainee Group). To compare their IQ, EQ, and EI to non‐offending boys attending a child psychiatry clinic (Psychiatric Group) and boys without offending or psychiatric problems (Community Group). To compare psychiatric morbidity between the detainee and psychiatric groups. Method. Criminality levels of 30 detainees were evaluated using official court charge sheets. Psychiatric status was assessed through structured clinical interview (DISC‐IV); IQ through an individually administered IQ‐scale (WASI); EQ using the BarOn EQi:Youth Version (EQi:YV); and EI using the MSCEIT: Youth Version – Research Edition (MSCEIT:YV‐RE). IQ, EQ, and EI levels in the psychiatric and community groups were compared. Psychiatric morbidity between detainee and psychiatric groups were compared. Results. A total of 335 crimes led to the detention of detainees. Eighty‐three percent of detainees had a psychiatric disorder compared to 60% of young people in the psychiatric group. Detainees had 3.1 disorders each compared to 1.4 disorders in the psychiatric group. A total of 63.3% of detainees had an externalizing problem, 37.9% an internalizing problem, and 66.7% a substance dependency or use problem. A total of 21.4% of detainees had an IQ score below 70. The detainee and psychiatric groups had similar deficits in EI and significantly lower EI than the community groups. Conclusions. Serious levels of criminality and psychiatric disorder exist amongst Irish detainees. They have significantly lower IQ than young people attending a psychiatry clinic and both share deficits in the ability to accurately identify emotions, use emotions to guide thought processes and to prioritize thinking and to effectively regulate emotions.     

Overriding Psychiatric Advance Directives: Factors Associated with Psychiatrists' Decisions to Preempt Patients' Advance Refusal of Hospitalization and Medication

Psychiatric advance directives (PADs) are intended to support patients' treatment decisions during a crisis. However, PAD statutes give clinicians broad discretion over whether to carry out patients' advance instructions. This study uses data from a survey of psychiatrists (N=164) to examine reasons for overriding PADs. In response to a hypothetical vignette, 47% of psychiatrists indicated that they would override a valid, competently-executed PAD that refused hospitalization and medication. PAD override was more likely among psychiatrists who worked in hospital emergency departments; those who were concerned about patients' violence risk and lack of insight; and those who were legally defensive. PAD override was less likely among participants who believed that involuntary treatment is largely unnecessary in a high-quality mental health system.     

Courts' misplaced confidence in psychiatric diagnoses

In considering psychiatric evidence, criminal justice systems make considerable use of labels from official psychiatric classificatory systems. There are legislated requirements for psychological and/or behavioural phenomena to be addressed in legal tests, however medico-legal use of the current categorical diagnostic frameworks which are increasingly complex is difficult to justify. The lack of validity in large domains of the present classificatory systems is now more openly acknowledged, prompting a critical rethink. Illustrative examples include post-traumatic stress disorder, various personality disorders, and dissociative identity disorder. It follows that the Courts' faith in the present categorical classifications (e.g., DSMIV and ICD10) is misplaced and may be ultimately unhelpful to the administration of justice.     

Regional psychiatric boards in Israel: expectations and realities

As laid down by Israeli legislation, the Regional Psychiatric Board constitutes one of the chief instruments in the monitoring of compulsory hospitalization, of compulsory outpatient treatment and of the quality of all inpatient care of the mentally ill. This article presents the findings of a study into the working of these boards. Taking a sample of every second application (N=168) over a 6-month period to one of Israel's six existing Regional Psychiatric Boards, an examination was made of the decisions issued by the board and of other aspects of its functioning. Explanations for the findings of this analysis are suggested, and generalizing from these findings, recommendations are offered for the improvement of the future functioning of all six Boards.     

Civil commitment in Turkey: reflections on a bill drafted by psychiatrists

Involuntary hospitalization of the mentally ill has been an issue that still remains outside the judicial system in Turkey. Despite the new Turkish Civil Code, which includes several articles relevant to involuntary psychiatric hospital admissions, there still appears to be a need for a comprehensive mental health law to address specific issues concerning civil commitment of the mentally ill. As a result of the lack of specific statutory regulation, an insufficient number of psychiatric hospital beds and limited appreciation of the safety risks involved in untreated mental illness, involuntary hospitalization remains an underutilized option by psychiatrists and the courts alike. In response to its concerned members, the Psychiatric Association of Turkey has appointed a task force to draft a proposed mental health law, entitled the "Psychiatric Patients' Bill of Rights." Although the draft suggests a model with emphasis on the right to psychiatric treatment, it also recommends close judicial oversight to prevent potential abuses of discretion by the system. However, this might present logistic problems in a country with already overburdened courts. Authors discuss the highlights of the draft within the context of Turkey's current cultural, social and judicial structure, and compare it to similar laws of other countries.