On Non-pecuniary Loss Compensation In Breach Of Tourist Contract

Liability for tort and liability for breach of contract is two kinds of basic civil liabilities. In China, according to the traditional civil law, extent of compensation excludes non-pecuniary loss that is applied in tort. It is generally thought that non-pecuniary loss is not recoverable in contract as in torts. So does it in tourist contract. This article attempts to challenge the reasonability of this opinion. In order to analyze this problem, the article will be divided into the following parts.In the first part, the author analyzes travel's nature, and the concept, characteristics, and legal nature of tourist contract, then the author points out that travel is by nature a cultural social activity, which is taken as consuming mental products. Traveler spends money, time and energy on travel is just to buy this kind product to satisfy their body and mind greatly. Tourist contract is not mere consume one, for its distinctive nature -its target is invisible which is a mental product-it is different from other traditional business contracts.In the second part, the author defines the scope of the thesis and some important concepts that are often used in article. The author thinks that non-pecuniary loss possibly results from the following situations:(l) The pure torts which cause non-pecuniary loss; (2) actions that are not only breaches of contract, but also torts which infringe upon the legal person rights; (3) actions that constitute breaches of contract, but are not serious enough to be torts that infringe upon the legal person rights. This article will be confined to investigate the third situation.In the third part, the author analyzes the cause and value of non-pecuniary loss compensation, and expounds because non-pecuniary loss may happen both tort and breach of contract, although it is regarded as a rule to apply non-pecuniary loss in tort, it will show more thoughts of people from law by applied non-pecuniary loss in breach of contract.In the fourth part, the author summarizes two situations which non-pecuniary loss may take place in tourist contract, and produces the solutions: (1) to choose tort or breach of contract when non-pecuniary loss in coincidental liabilities; (2) to establish rights of claim of non-pecuniary loss compensation only in breach of contract.In the fifth part, the author compares and analyzes a lot of cases that happened in Germany law, Switzerland Law, French law, English law and American law. In these cases victims were awarded the damages for non-pecuniary loss. The author concludes that non-pecuniary loss which are caused by breach of contract are popular phenomena.In the sixth part, the author collects and analyzes the law and rule, theories and judicial practice in China. In China, there are no stipulations on non-pecuniary loss in contract in law, and it is generally held that non-pecuniary loss is not recoverable in contract. Even in judicial practice, judgers usually refuse non-pecuniary loss in contract.In last two parts, from balance of interests, the author provides that it is necessary that to confirm non-pecuniary loss in breach of tourist contract in law for nature of travel and peculiarity of tourist contract. Specific measures as followings: (1) to write tourist contract in civil law and endow traveler with rights of claim of non-pecuniary loss in breach of contract; (2) to use successful experiences of Civil Law and Common Law in judicial practice so as to safeguard the lawful rights and interests of tourists effectively.