Compensation for Rape Victims in China

Transcription

1 Compensation for Rape Victims in China Author: Xiufang Cheng Student number: Administration number: Institution: Victimology and Criminal Justice Education: Tilburg University 1

2 Supervisor: Dr.Mr. S. van der Aa Content table 1 INTRODUCTION Introduction Reported rape crimes Problem statement and research (sub)question(s) THE CURRENT CHINESE COMPENSATION REGIME REGARDING COMPENSATION The Chinese legal system Compensation through civil procedures Claim for compensation in civil procedures The types of compensation Individuals or institutions responsible for paying the compensation The enforcement of judgements on compensation Conclusions on the compensation in civil procedures Compensation through criminal procedures Claim for compensation in criminal procedures The types of compensation The responsible individuals or institutions for the compensation The enforcement of judgements on compensation Conclusions on the compensation in criminal procedures The choice between civil and criminal procedures VICTIMS NEEDS AND SATISFACTION REGARDING COMPENSATION Victims needs in regard to compensation The needs regarding the types and amount of compensation The motivation for compensation Victims satisfaction with the compensation Impact of the victims expectation Impact of the duration procedure Conclusions on victims needs and satisfaction INTERNATIONAL AND NATIONAL STANDARDS ON COMPENSATION International standards on compensation Compensation in the 1985 UN Declaration Compensation for rape victims in the UK Compensation through civil procedures Compensation through criminal procedures State compensation for victims of sexual assault in the United Kingdom Conclusions on the international and national standards for compensation CHAPTER 5 CONCLUSIONS Conclusions on each sub-questions Shortages in the Chinese compensation regime for rape victims Recommendations for developing a proper compensation regime for rape victims Bibliography... 1 Appendix

3 Appendix Appendix

4 1 INTRODUCTION 1.1 Introduction In China, a man called Jie Wang created a website, supposedly to raise money for the local students. In fact, he tricked young girls to have sex with him by promising them grants. The man was prosecuted and finally sentenced to 15 years imprisonment for rape (Mo, 2016). According to the case report on the website of the Baise Intermediate Court, where the case was trialed, the focus of the criminal justice procedure and the trial rests on the crime that the offender has committed and the punishment he received, while no attention is paid on how to compensate the victims (Mo, 2016). Furthermore, as reported in Fenghuang News (Rui, 2016), the victims did not claim any compensation at all, neither material nor mental damages. There was no evidence for them to prove the material damages that they had suffered. In addition, according to one of the victims lawyers, the court would not have accepted a claim for mental damages either, regardless of whether they had been instigated in the criminal or civil procedure (Rui, 2016). This case sheds some light on the issue that it is relatively difficult for victims of rape to claim full compensation in China, especially when victims suffer immaterial rather than material damages. This has to do with the fact that they can only claim for material damages in criminal proceedings. Mental damages are not dealt with by the criminal courts. If a victim who has suffered mental injury, as a result of the defendant s criminal acts, files an incidental civil action during the course of the criminal proceedings, or initiates a civil lawsuit for mental damages, the people s court will not accept it, according to the Provision on the Application of the Criminal Procedural Law, article 138 (The Supreme People's Court, 2012). However, many rape victims suffer more mental damages than material damages, and some of them even suffer from the effects of crime for the rest of their life (Vinson & Elkins, 2013). Many of them experience difficulties integrating back into society, they develop posttraumatic stress disorder (PTSD) or 1

5 other mental health problems (Yuan, 2010). Despite their significant mental suffering, they are usually unable to get any compensation (Xu & Gan, 2016). Moreover, there are also problems with compensation for the material damages. This has to do with the fact that, there is no state compensation for victims available in China. State compensation refers to the situation in which the victim is compensated for his/her damages by the state, instead of the offender who caused the harm (e.g., in case the offender remains deficient). The lack of a Chinese state compensation scheme means that if victims cannot get the material compensation from offenders, there will be no alternative financial remedies for them, even though their claims can be supported by the judge (Jin G., 2006). In some cases, the offenders are poor, but sometimes they just do not want to give money to victims (Li, 2013). It cannot be denied that the two deficiencies in the current legal system, that is, lack of mental damages compensations in criminal courts, and no state compensations for victims of crime, are obstacles to almost all the victims of crime who want to get (full) compensation. Moreover, Mark (1988) estimated the costs of crime to different victims, including victims of rape, robbery, assault, larceny, and burglary, based on the actual risk of injury or death, and converted it into dollars (U.S). The costs he assessed were the costs of pain, suffering, and fear inflicted upon the victims, rather than the out-of-pocket expenses, such as the medical fees and the lost incomes (Mark, 1988). In his research, the cost of damages suffered by rape victims was the highest (51,058 dollars), compared with the cost to victims of other crimes (Mark, 1988). Therefore, the rape victims may be more negatively influenced, sustaining more pain, suffering, and fear. Therefore, the compensation for rape victims needs more attention. 1.2 Reported rape crimes There are many victims of rape every year in China. Table 1 shows the amount of rape crimes which were registered in public security organs from 2009 to 2016, and the data is extracted from the China Statistical Yearbook (National Bureau of Statistics, 2017). The amount of rape crimes is around 0.5% of all the crime cases registered in public security organs. 2

6 Even though the percentage of reported rape cases compared to the total amount of reported crimes is relatively small, there are more than 30 thousand rape cases every year. The amount of rape victims cannot be underestimated. Table 1: Rape Cases Registered in Public Security Organs and Its Percentage of All the Cases Registered Year Number of rape 30,248 33,286 33,696 33,336 33,835 33,102 33,417 29,948 cases registered Percentage (%) However, table 1 only shows part of the rape crimes, as not all of them are reported and registered. There is a gap (or dark number) between the number of reported victims and all rape victims. According to a survey conducted by the United Nation in China, 22.2% of the 998 males who participated in the survey reported to have raped females, and 65% of the offenders are intimate partners of the victims (Warner, et al., 2013). The respondents were selected from a county in the central part of China; it is also a standard county that can be considered to reflect the general situation in China (Warner, et al., 2013). Research shows that in the ideal rape situation, which involves a violent attack by strangers, victims are more likely to report to the police, because they believe they are true victims (Williams, 1984). Besides, an empirical research based on the National Crime Victimization Survey from 1992 to 1994 (in America) proves that if victims sustain physical injuries during rape, and if offenders use a weapon, it will significantly increase the likelihood of the victims to report the crimes (Bachman, 1998). Nevertheless, if the victims are acquaintances of the offenders, they are less likely to report the crimes since they are ashamed of their own role and responsibility in the crime (Williams, 1984). According to the survey in China, 65% of the offenders are acquainted with or even intimate partners of the victims (Warner, et al., 2013). Many of them may not report 3

7 the victimization to the police. In addition, it has been demonstrated that large proportions of victims of sexual crimes did not report their victimization to the police or other authorities. Rape has been the most unreported violent crime in the National Victimization Survey (Bonnie, Leah, Francis, & Michael, 2003). Under these circumstances, the number of actual rape victims is likely to be much higher than the number of victims reported to the police or other authorities. 1.3 Problem statement and research (sub)question(s) Compensation or restitution for victims of crime in general is not a new topic. As early as 1963, New Zealand established the first compensation program for victims of crimes, and the United Kingdom followed the year after (Marvin, 1965). In the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985 UN Declaration), victims have the right to compensation from the offenders, and, if possible, to state compensation (UN General Assembly, 1985). The United Kingdom became the first country to establish the victim compensation scheme in Europe, through the Criminal Injuries Compensation Act in 1964 (Katsoris, 1990). Nowadays, the United Kingdom is reforming the old regime and focusing on the protection that considers the injuries of violent and sexual crimes (Home Affairs Section, 2012). Yet there are few relevant studies on the compensation for rape victims in the Chinese academic field. This topic has been mentioned but not studied elaborately in two papers which researched how to protect victims of sex crime through the whole process of criminal justice (Yuan, 2010 (a)), (Yuan, 2010, (b)). Some studies focus on criticizing the current incidental civil action (Chen, 2009), (Xiao H. J., 2001) and appeal to the establishment of a state compensation regime for victims of crime (Wu, 2012), (Liu, 2005) as well as granting them compensation for mental damages (Zhang, 2007), (Zhao, 2005). Those studies mainly focus on victims in general. Less attention has been paid to rape victims, especially their needs of compensation. Due to the lack of dedicated research, the issue of compensation for rape 4

8 victims warrants extra attention. That is what this paper is going to address. It leads to the following research question: How can China develop a proper compensation regime for material and mental damages for rape victims that is up to par with international and national standards on compensation as well as victims needs? 1 In order to answer this question, various sub-questions have been developed, each of which can be categorized into four parts of the thesis: First, what is the current compensation regime in China? The current regime will be mapped in order to know what kind of loss or damages rape victims can get compensated, through civil or criminal procedures. Next, who is responsible for paying compensation to victims? How are the court s judgements regarding compensation made by the court enforced? How do victims choose between the two (civil and criminal) proceedings? The relevant laws and regulations will be collected from the governmental or official websites. Second, what are the victims needs and satisfaction concerning compensation? An inventory will be made of (Chinese) rape victims needs concerning compensation. The goal of this chapter is to find out what victims wish to be compensated in the procedures and what may influence their satisfaction regarding compensation. Based on the types and amount of compensation in their claims showed in the cases from China Judgment Online, a first assessment is made of Chinese victims needs regarding compensation. The China Judgement Online is a website where the courts can publish cases. It was not until 2013 that China decided to publish cases to the public to promote judicial transparency (The Supreme People's Court, 2013). Despite that, not all the cases are available on the website. It is difficult to conduct empirical research on rape victims to find out their needs and experiences about 1 The term mental damage is similar with immaterial damage. Since the Chinese legislator uses the term mental damage to refer to compensable damages, this term is also adopted in this paper. 5

9 compensation in a direct way. There is little empirical research in China about victims needs or experiences. Hence, the published cases become significant resources to understand what could be the rape victims needs and their experiences regarding compensation. Even though it is difficult to deduce victims needs and satisfaction only by analyzing their claims in court, a first assessment can still be made. In addition to the study of Chinese case law, English academic literature on rape victims needs will be studied, since little relevant Chinese literature is available. Third, what are the national and international standards on compensation for rape victims? As introduced before, certain international standards for compensation for victims of crime can be found in the 1985 UN Declaration. Despite that this resolution by the General Assembly does not have true legal effect, it can still carry considerable political weight on member states of UN, including China (Johnson, ). Even though this instrument is not exclusively about the compensation for rape victims it deals with crime victimization in general it can provide important soft law instructions concerning rape cases as well. For the comparison on the national level, the UK was selected, because of its sophisticated (state) compensation scheme and because of the fact that information was available in English. The United Kingdom is interesting, because it has a state compensation program for victims of sexual crimes, and compensation through civil or criminal procedures. The choice for the UK was furthermore inspired due to the author s limited ability to understand sources written in languages other than Chinese and English. A disadvantage of a comparison with the UK is that it has is a common law system, whereas China has a civil law system. As a result, victims in the criminal procedure play different roles in the two legal systems. Victims in the UK can mainly function as witnesses in the criminal procedure, while victims in China can also join the criminal procedure with their civil claims for damages. Despite the difference of victims roles in criminal procedure, victims compensation through the civil or criminal procedures and state compensation programs can still provide some inspirational value to China. Therefore, this chapter is going to examine what the international standards for 6

10 compensation for rape victims are. The study on the United Kingdom s legislations and policies related to victim compensation focuses on how it compensates for rape victims, and what can be compensated. In the last part, the conclusion will be drawn by comparing the Chinese current regime with the international standards and national experiences, also taking the victims needs into consideration, in order to know where the Chinese regime falls short and how to improve it. 7

11 2 THE CURRENT CHINESE COMPENSATION REGIME REGARDING COMPENSATION Victims have the right to claim for compensation in either a civil procedure (independent civil actions), or in a criminal procedure when the criminal case is on trial (incidental civil actions). When the claims for compensation are discussed during the criminal procedure, the victim is an independent party. In other words, a rape victim can sue the offender for compensation in a civil procedure or make the claims during the criminal procedure when the offender is on trial, also known as the adhesion procedure. Rules on the procedures of independent civil actions and the incidental civil actions bear much resemblance, as some of the rules in the civil procedures can also be applied in the criminal procedures. Moreover, there are rules special for the incidental civil actions in the criminal procedure laws and judicial interpretations. This chapter is going to elaborate on the resemblances and differences, by examining the legal grounds for rape victims to make claims in civil or criminal procedures, the types of compensation the victims can claim (e.g., mental and/or material), the individuals or institutions responsible for the judgements, as well as the enforcement of the judgements in the two procedures. Finally, the comparison between the different procedures will be made, in order to know how victims can make a choice between the two. However, before the two compensation procedures are analyzed, a short paragraph is included to provide a brief explanation of the Chinese legal system (mainly to explain the division of tasks between the Chinese legislator and the Supreme People s Court) to non- Chinese readers. As will be explained later on, these two organs sometimes hold contradicting opinions on the interpretation of the situations that are worthy of compensation, making it difficult to determine when Chinese rape victims can claim for (mental) damage in court. 2.1 The Chinese legal system 8

12 As background information about the Chinese legal system, the main legal sources that will be studied in this paper can be simply divided into two types: the laws made by the Chinses legislators, the National People s Congress and its Standing Committee (National People's Congress, 2004, article 58); the judicial interpretations made by the Supreme People s Court (National People's Congress, 2006, article 32). The laws have the highest legal status, which are followed by the judicial interpretations (The National People's Congress, 2015, article 88). However, there are no guidelines on how to check whether the judicial interpretations are coherent with the laws. This is the main reason why there are so many conflicts between the laws and judicial interpretations, which will be introduced further in the paper. 2.2 Compensation through civil procedures Since there is no Civil Code in China, the compensation for damages caused by the offenses can be found in different civil laws. Namely, the General Principles in Civil Law, Tort Law, and the Civil Procedure Law, as well as the judicial interpretations regarding those laws that were issued by the Supreme People s Court. The General Principles of Civil Law provide the general guidelines to protect people s civil rights. The Tort Law makes it more specific and clear about when and how tort liability should be established in the cases of infringement of rights by other civilians. The Civil Procedure Law gives procedural rules regarding all the civil cases. The following study is based on those laws, along with relevant cases and academic studies Claim for compensation in civil procedures The General Principles in Civil Law say in article 119 that anyone who infringes upon another person s body and causes any physical damage shall compensate for medical fees and work expenses. For those who are disabled because of the infringement, there shall also be allowance for their daily life. For those who are dead, it shall cover the funeral expenses, 9

13 the necessary living expenses for the dependents, and any other expenses (National People's Congress, 1987). In other words, the compensation should cover the medical fees for the physical damage, and the income that the victims lost because they could not go to work during the treatment. Further compensation for the disabled and dead should be made such as basic living expenses for the victims or their dependents, funeral fees, and so on. In addition, there are rules in Tort Law which can be applied to rape victims, because it says that anyone who infringes upon another person s civil rights and interests shall be subject to tort liability (The Standing Committee of PRC, 2009, article 2). The civil rights and interests include the right to life, the rights to health and reputation, and victims have the right to ask the infringer to assume tort liability (2009, article 3). One of the methods for assuming tort liabilities is to pay compensation for losses (2009, article 15). However, there could be some delay in the proceedings if victims want to bring an independent civil action before the criminal case is closed. As soon as the civil judge finds out that the defendant in the civil case is suspect of any criminal liability that is relevant to the civil claims, the court shall stop the civil procedure, and wait until the defendant s criminal liability is decided in a criminal procedure. After that, the court can decide about the defendant s civil liabilities (National People's Congress, 2012). It has developed into a general principle that the criminal procedure is prior to civil procedure in practice, when the defendant in the civil case is suspect of any criminal liability that is relevant to the civil claims (Xiao & Song, 2017). When the rape victim brings an independent civil action against the offender before he is found guilty, the judges will have to wait for the judgements from the criminal court about whether he is guilty or not, before deciding on what kind of liability should be taken. In this case, the court fails to give attention to the victim s civil claims to some degree, and it causes delay in the civil procedure (Xiao & Song, 2017). Obviously, it is not good for victims if they cannot claim for compensation or other civil remedies within a reasonable time (Ma, 2016). Overall, victims have the right to claim for compensation in a civil procedure. However, there might be some delay in the proceedings, as the court will have to wait for the criminal 10

14 court judgements. Only if the victims make the civil claims after the criminal cases were closed, there will be no additional delays from the criminal procedures The types of compensation As rape is an infringement to one s personal rights, rather than their property rights, there are two types of compensation included in Tort Law: the compensation for material damages, and the compensation for mental damages (article 16 and article 22). Below is more detailed information about the types of damages that can be compensated in the Chinese independent civil procedure Compensation for material damages According to the General Principles of Civil Law (article 119), the victims can be compensated for the medical fees of the physical injury and lost income. Furthermore, in the Tort law, it says in article 16 that, in addition to the medical fees, other reasonable costs and expenses for treatment and rehabilitation should also be included, such as nursing fees and traveling expenses (The Standing Committee of PRC, 2009, article 16). Moreover, the Supreme People s Court interpreted that the costs of accommodation, 2 food, and nutrition during the treatment should also be covered (The Supreme People's Court, 2003, article 17). In addition, according to the judicial interpretation concerning the compensation for personal damages in civil court, the court mainly supports the medical fees that have already been incurred. Future medical fees can be claimed by the victims in another action, unless 2 The costs for accommodation refers to the accommodation that victims needed when they went to another city to receive treatment. 11

15 there are medical certificates or expert opinions which can prove the costs will definitely be incurred in the future (The Supreme People's Court, 2003, article 19). Apart from the basic compensation for the treatment of the physical injuries and the lost income, there is additional compensation for the victims who become disabled or die because of the infringement. It should cover the basic living expenses of the victims, or their dependents and the funeral fees if they die from the infringement, and so on (National People's Congress, 1987, article 119). 3 Moreover, according to the Tort Law, if victims are disabled, the infringers shall pay for the costs of the disability assistance equipment that the victims need to support their basic life, as well as the disability compensation. For victims who died, the infringers shall pay the death compensation, including costs of the funeral services and living expenses to the victim s dependents (The Standing Committee of PRC, 2009, article 16). In addition, the Supreme People s Court believes the expenses should also be supported for victims relatives arranging the funerals, such as the costs of transportation, accommodation, lost income, and so on (The Supreme People's Court, 2003, article 17). Overall, victims can be compensated for the costs regarding the treatment of physical damages, as well as lost income during the treatment. If they become disabled, it should cover the living expenses, the expenses for equipment, and the so-called disability compensation. If they are dead, it should cover the living expenses for their dependents, the funeral fees (including the costs of relatives who organize the funeral), and the death compensation. The disability compensation and the death compensation will be explained later on in section , after the compensation for mental damages is discussed. 3 The term so on is a common strategy in legislation. Here it means there could be other types of compensation that is not explicitly included in the article. What else can be included depends on the cases. 12

16 Compensation for mental damages The concept of mental damages was first introduced into the legal system by the Supreme People s Court in the Interpretations on the Issues Regarding the Ascertainment of Compensation Liability for Mental Damages in Civil Torts (2001). As explained in the beginning of the Interpretations, the Supreme People s Court made this interpretation in accordance with the General Principles of Civil Law, and other instruments, as well as the experience from the judicial practice (The Supreme People's Court, 2001). A highly relevant clause in the General Principles of Civil Law is article 120, which states that the citizens can claim for compensation for mental damages when the following rights are violated: the right of name, the right of portrait, the right of reputation, and the right of honor (National People's Congress, 1987). This is the first step in China to lay ground for the establishment of mental damages compensation, as it makes those immaterial damages compensable (Liao, 2015). No definition of mental damages from legal authorities has been found. One of the academic opinions is that it should contain the pain and bitterness of one s emotions, the mental suffering or anguish of the citizen (Liao, 2015). Thus, the concept mental damages in this paper is equal to immaterial damages in general. The Standing Committee of congress had not written the compensation for mental damages into the Tort Law until 2009, while the concept of mental damages is absent in either this law or the judicial interpretations. Since then, the compensation for mental damages is legitimated by the legislator, which means the victims should have more sufficient legal ground to seek mental damages compensation. According to the Tort Law, victims who suffer serious mental distress because of the violation of personal rights or interests can demand compensation (The Standing Committee of PRC, 2009, article 22). However, no explanatory materials show how to explicitly interpret serious mental distress. The 2001 Interpretation is still in effect, giving detailed guidelines to the courts for cases on trial. They, for instance, explain the manner in which to decide the amount of compensation; 13

17 it depends, amongst others, on the magnitude of the wrongfulness, the circumstances, the consequences, and the economic capacity of the infringers (The Supreme People's Court, 2001, article 10). 4 In order to understand how and in what circumstances the judge would support the rape victims claim for compensation of mental damages in the civil proceedings, thirteen cases were collected from the China Judgment Online. 5 In fifty-five cases from the website, rape victims claimed for compensation. Thirteen of those are cases where victims claimed for mental damages compensation, and their claims were supported by the judges. The reference list of the thirteen cases can be found in appendix 1. Table 2 shows the features of the cases, including the age of the victims, the circumstances of the cases, the amount of compensation that victims claimed, and the amount of compensation awarded by the courts. It also shows when the offenders should pay the victims. A question mark in the table means the relevant information is not available from the verdicts, and the term minors refers to victims who were under 18 when they were victimized. Because of the limited number of cases available from the website, as not all verdicts are published online, it is difficult to draw any significant conclusion from table 2 about the 4 Here are some examples to understand the elements that influence the compensation for mental damages. If a rape victim is under 18 years old, the court may think the offenders wrongfulness is higher than in a case that victim is not under 18 years old. If the crime happened in a school that a teacher raped his student, the court may take this special circumstance into consideration. If the victim is pregnant due to the rape, the pregnancy can be considered as a bad consequence. In addition, if the offender is poor, the judges might not grant the compensation to victims, or the victims can get less compensation. Those can be the factors that courts may take into consideration when they make a decision on mental damages compensation. 5 The searching process took place on 20 March to 16 April, Here is the searching process of the thirteen cases: at first, 183 cases were produced by the key words rape AND compensation OR damages AND civil cases AND verdicts. However, many irrelevant cases were involved such as car accidents, domestic violence. After checking every case in detail, fifty-five cases were yielded in which rape victims claimed for compensation in the civil proceedings. The above thirteen cases were selected from the fifty-five cases. In the thirteen cases, victims claimed for mental health compensation, and it had been granted. 14

18 circumstances in which the judges would grant the compensation for mental damages to rape victims in general. Therefore, the results of the case study are only exploratory and need to be interpreted with care. Table 2 indicates that most victims were minors (nine out of thirteen). Some victims suffered serious consequences from the crime, which include post-traumatic stress disorder (cases 1 and 9), inability to go to work for one year after the rape (case 5), and pregnancy (case 4). The amount of money granted to victims is usually lower than the amount of compensation claimed. The table only shows two cases in which they got the exact amount they wanted (cases 5 and 6). There was no relevant information about how much they claimed in cases 2, 3, 10, and 11, so it is impossible to make comparisons in these four cases. Victims were awarded less than they claimed in the other seven cases. The amount can be compared with the yearly average disposable income 6 of China in 2015, which is 21,966 RMB (National Bureau of Statistics of China, 2016). All of the nine victims who formulated specific claims in the verdicts (cases 1, 4, 5, 6, 7, 8, 9, 12, and 13) wanted a higher amount of compensation than this yearly average disposable income. However, seven of the thirteen victims (cases 1, 3, 8, 9, 10, 11, and 12) received compensation which is less than the average income. The offenders are supposed to pay the compensation in a short time, normally ten or seven days after the judgements come into effect. If the offenders fail to pay victims on time, victims have the right to apply for enforcement of the judgements. More information about enforcement of the judgements is in section and section The yearly disposable income is similar to the net income. The China Statistics Bureau uses the disposable income for urban residents, and the net income for rural residents, to describe people s economic status. 15

19 Table 2: Judge s decision on mental damages compensation in civil proceedings. Case number Minors Special case information (circumstances, consequences and so on) Claimed amount of mental damages compensation (RMB) The amount of compensation supported by judges(rmb) Date of payment 1 Post-traumatic Stress Disorder 50,000 8, days after the decision taking effect 2 happened in kindergarten, victim claimed compensation to the kindergarten? 30, days after the decision taking effect 3 violence? 5,000 4 raped for many times, pregnant 300,000 50, days after the decision taking effect 10 days after the decision taking effect 5 could not go to work for one year because of the mental damages 80,000 80, days after the decision taking effect 6 raped when drunken, by many offenders 50,000 50, days after the decision taking effect 16

20 7 the offender was victim's teacher 200,000 50, days after the decision taking effect 8 many times raped by 3 offenders, violence 40,000 15,000 10days after the decision taking effect 9 raped by an employee of the nursing home; PTSD 50,000 10, days after the decision taking effect 10?? 15, raped for three times? 8, raped when drunken, violence 30,000 5,000 13? 100,000 50, days after the decision taking effect 10 days after the decision taking effect 10 days after the decision taking effect 7 days after the decision taking effect 17

21 So far, it has been proven that Chinese citizens have the right to claim compensation for mental damages in the civil proceedings on the ground of civil laws, which are the General Principles of the Civil Law and the Tort law. Moreover, the cases in table 2 show that the civil courts granted rape victims with compensation for mental damages in some circumstances. Although the civil courts did grant compensation for mental damages, only thirteen cases in which it was granted have been found. There are more cases in which the mental damage compensation was not granted. Perhaps there is an insufficient legal base to do so (it is not clear whether they are allowed to do so). It is controversial whether the rape victims can get compensation for mental damages in civil proceedings. This has to do with their interrelatedness with rules regarding compensation in criminal procedures, something that will be discussed in more detail in section which considers the compensation of mental damages for crime victims in criminal procedures The disability and death compensation The words disability compensation and death compensation are translated literally in accordance with the canji peichang jin ( 残疾赔偿金 ) and siwang peichang jin ( 死亡赔偿金 ), meaning the money compensated for people who are disabled or dead. The amount of the disability compensation depends on the degree to which the victim lost his or her ability to work, or the seriousness of the disability. In addition, it also depends on the local average income of the residents from last year, based on where the victims reside, within rural or urban areas (The Supreme People's Court, 2003, article 25). The death compensation is also based on the local average income of the residents from last year (The Supreme People's Court, 2003, 18

22 article 29). They can be calculated to up to 20 years. 7 No other elements for the calculation of the amount of compensation, such as the profession of the victim or the currency inflation, have been mentioned in either laws or interpretations. Rape victims can be disabled or dead due to the offense. They, or the dependents of the deceased victims, can also claim the compensation for disability or death in some cases. For example, in the case of Mou Yong, Guo Mouyuan v Li Moufa, when the offender wanted to rape the victim in a driving car, the victim jumped out of the car and died (Mou Yong, Guo Mouyuan v Li Moufa, 2013). When the dependents of the victim claimed the death compensation, the court agreed with their claim. Judges believed that even though the victim died because of her own action, the offender did force her to have sex with him, which led to her escape and death. If the victim was not dead but disabled when she jumped out of the car, the offender is also supposed to make disability compensation to the victim. However, the nature of the two types of compensation is unclear. In other words, it is debatable whether they are compensation for mental damages or for material damages. Since the mental damages compensation is mentioned separately from the disability and death compensation in the Interpretation of Some Issues concerning the Application of Law for the Trail of Cases on Compensation for Personal Injury (The Supreme People's Court, 2003, article 23), logic dictates that they are different forms of compensation. While in Interpretation of the Supreme People's Court on Issues regarding the Ascertainment of Compensation Liability for Mental Damages, it says that the mental compensation can be death compensation, disability compensation or other forms of mental damages compensation (The Supreme People's Court, 2001, article 9), which results in the other two becoming forms of the mental damages compensation. 7 Exceptions exist when victims are older than 60 years old. The calculated year will be decreased as the age increased. For example, if the victim is 62, then the calculated year is 18 (20-2). For the victims who are older than 75, the calculated year is 5. 19

23 Legal scholars do also have different opinions about the rationale underpinning the disability compensation and the death compensation. Those who think they are compensation for material damages argue that the compensation is a kind of lost income in the future for those disabled who lost their ability to work, or for the dependents of a deceased person (Jin T. J., 2011). While in contrast, some believe the compensation is for the mental damages or mental anguish caused to the disabled and the close family of the deceased (Tang & Tang, 2011). The nature of the disability compensation and death compensation whether they are the compensation for mental damages or for material damages - is unclear. Nevertheless, it does matter to rape victims. Because victims can only receive compensation for material damages, rather than the compensation for mental damages, according to the judicial interpretations in criminal procedures. Therefore, if the disability and death compensation are interpreted as forms of compensation for mental damages, they could not be awarded, at least not in the criminal (adhesion) procedure for the incidental civil action. On the contrary, if they are interpreted as compensation for material damages, they could be awarded both in the civil and criminal procedures. This issue will be further discussed in section regarding the compensation in criminal proceedings Individuals or institutions responsible for paying the compensation The rules about the responsible individuals and institutions can be found in the Tort Law. Basically, the infringers or tortfeasors should compensate their victims (The Standing Committee of PRC, 2009, article 3). For those who are not capable of conducting civil acts independently, mainly those under 16 years old or with certain kinds of mental disabilities, their guardians should take the responsibility for them (The Standing Committee of PRC, 2009, article 3). If the offenses take place in public areas, such as hotels, shopping malls, banks, and stations, the owners or managers of the institutions who failed to perform their obligations to 20

24 secure people should take (part of) the responsibility (The Standing Committee of PRC, 2009, article 37). If the victims are victimized at kindergartens, schools or any other educational institutions, and they are not capable of conducting civil acts, the institutions should take responsibility for them, unless they prove that they have already performed their obligations to protect victims well (The Standing Committee of PRC, 2009, article 38). An example can be seen in the case of Xu Mou v Teng Yuchao, Primary School of Shuangqiao (case 7 in table 2), where the victim claimed compensation from the offender and the primary school. The court believed that the primary school failed to commit its obligation of education and management, which caused the offender (a teacher of the school) to rape the victim during his work time, so the school was obligated to pay 24,406 RMB to the victim (Xu Mou v Teng Yuchao, Primary School of Shuangqiao, 2016). At the same time, the offender was not exempted from his obligation. He too was sentenced to pay 50,000 RMB for the damages (Xu Mou v Teng Yuchao, Primary School of Shuangqiao, 2016). To sum up, offenders are supposed to take the responsibility. If the offenders are not fully capable of conducting civil acts, their guardians should pay the compensation to victims for them. In addition, victims can claim compensation against not only the offenders, but also any responsible institutions The enforcement of judgements on compensation As table 1 shows, in many cases the courts require the offenders or other obligated parties to pay victims ten or seven days after the judgment goes into effect. The main rules can be found in the Civil Procedure Law. The offenders and other parties are obligated to live up to the judgements. If they fail to do so, victims can apply the court to enforce the judgements (National People's Congress, 2012, article 236). If they fail to perform the duty after the court has informed them, the court has the power to seize, freeze, and transfer the properties of the person who is subjected to enforcement of their duty (National People's Congress, 2012, article 21

25 242). If the offenders fail to commit the duty regarding monetary obligation on time, they shall pay double interests of the delayed periods (National People's Congress, 2012, article 253). If the offenders still cannot fulfill the duty after using all approaches, they are still obligated to the rest of their duty. The victims (creditors) can apply to the court to enforce the payments under the judgments anytime when he or she finds the person has other properties (National People's Congress, 2012, article 254). Overall, victims are supposed to be compensated at a fixed date with a fixed amount. If the offenders or other obligated parties fail to commit their duty on time or completely, the victims can apply to the courts for enforcement of duty. However, if the offender is without income or assets, the victim will not be able to receive compensation Conclusions on the compensation in civil procedures According to the civil laws, rape victims can get compensation for the costs regarding the treatment of physical damages, as well as lost income during the treatment. If they become disabled, it should cover the living expenses, the expenses for equipment, and the disability compensation. If they are dead, the compensation should cover the living expenses for their dependents, the funeral fees, and death compensation. If the laws and judicial interpretations in criminal procedures are not taken into consideration, the disability and death compensation are all available to victims of rape or their dependents, no matter they are interpreted as mental damages compensation or material damages compensation. The compensation for mental damages in civil procedures is legitimated according to the Tort Law. It is also possible in practice, as thirteen cases from the civil procedures show that rape victims can get compensation for their mental damages in some civil cases. However, it seems that a majority of the rape victims cannot get compensation even in the independent civil actions, as only in thirteen of the cases mental damage compensation has been awarded. 22

26 There is no clear standard about how to calculate the mental damages compensation; judges make different judgements in different cases regarding the mental compensation. They generally do not substantiate their judgements with lengthy explanations on how they arrived at a certain amount of compensation. Some main elements should be taken into consideration, such as magnitude of the wrongfulness, the circumstances, the consequences, the economic capacity of the infringers. However, it will be debatable whether the compensation for mental damages, the disability and death compensation should be granted in an independent civil action (in the civil procedures) when considering the laws and judicial interpretations in the criminal law. Because there is a judicial interpretation of Criminal Procedure Law stating that victims of crime cannot get the mental damages compensation granted in either the civil procedure or the criminal procedure (further discussion is in section and section ). The offenders are obliged to provide compensation to victims, but when they are not fully capable of conducting civil acts, their guardians should take responsibility instead of them. The institutions could also be the obligated parties when they fail to adhere to certain obligations. If the offenders and other obligated parties do not pay for (full) compensation in time, the victims can apply to the courts to enforce the judgements. 2.3 Compensation through criminal procedures Victims are independent parties in the criminal procedures and they are entitled to make a claim for compensation. This is called an incidental civil action. Victims rights can be drawn from the Criminal Law, the Criminal Procedure Law and the judicial interpretations from the Supreme People s Court. In addition, the rules from civil proceedings can also be applied into the criminal proceedings when the claim about compensation is on trial (The Supreme People's Court, 2012, article 163). 23

27 2.3.1 Claim for compensation in criminal procedures The Criminal Law 2015 Amendment states that if the victims suffer from economic loss because of the offenses, the offenders should compensate this loss (National People's Congress, 2015, article 36). Besides, in the Criminal Procedure Law (National People's Congress, 2012, article 99), victims are entitled to claim compensation for material damages in the criminal procedures. If the victims are dead or incapacitated because of the offenses, their immediate families or legal representatives are entitled to file an incidental civil action in the criminal procedures Victims are supposed to file the incidental civil action after the police have registered the criminal cases (The Supreme People's Court, 2012, article 147). If the victim did not file the suit in first instance but filed it in second instance, the court could mediate between the two parties. If this mediation does not work out, the victims can bring an independent civil action after the criminal judicial judgements come into effect (The Supreme People's Court, 2012, article 161). In other words, once the case has been registered by the police, which means the criminal procedure starts, the victims can only file an incidental civil action in the criminal procedure to claim for compensation, rather than file an independent civil action in a civil procedure The types of compensation Similar with the types of compensation in civil laws and judicial interpretations, the types of compensation in criminal proceedings can also be divided into the compensation for material damages and for mental damages. 24

28 Compensation for material damages The compensation for material damages in criminal proceedings is similar with the one in civil laws, as it has been explicitly provided in the criminal as well as procedural laws. If there are physical damages, the compensation should cover the costs for medical treatment, nursing and transportation as well as other reasonable fees regarding the treatment and recovery. Furthermore, if the victims become disabled because of the offenses, it should cover the expenses for the assistance equipment. If the victims are dead, there should also be compensation for funerals (The Supreme People's Court, 2012, article 163). However, it is remarkable that the rules regarding compensation within criminal procedure do not include the death compensation and the disability compensation in the circumstances where victims are dead or disabled Compensation for mental damages The compensation for mental damages should be granted not only in the civil procedure (for an independent civil action) but also in the criminal procedure (for an incidental civil action) from the perspective of Tort Law. The offender s tort liability shall not be prejudiced when he has to assume criminal liability for a same infringement act (The Standing Committee of PRC, 2009, article 2). It means in the case of rape, if the offender is found guilty, and he receives the punishment according to the Criminal Law, he still has to take tort liability for the victim, as he caused damage to the victim. The offender is supposed to make compensation both for material damages and mental damages (civil liability) while he gets punished (criminal liability). The compensation for mental damages is not explicitly ruled out in Criminal Law and Criminal Procedure Law, nor does it is included explicitly in the two laws. However, the Supreme People s Court holds the opposite opinion on this issue. There were judicial interpretations from the Supreme People s Court that the compensation for mental damages in criminal procedures should not be granted (The Supreme People's Court, 2002), 25