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Spirit Indemnity In Breach Of Contract

Posted on:2012-03-02Degree:MasterType:Thesis
Country:ChinaCandidate:Z L PengFull Text:PDF
GTID:2166330338459699Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
At present, for the moral damage, tort damages can be obtained, our academics and the judiciary have no objection to this. They are all recognized the moral damage in infringement can received compensation. However, whether the party could obtain spirit indemnity based on breach of contract, academic circles debate intensely and judicial decisions are extremely different. By the text analysis, the paper attempts to pose the rationality of construction of break contract spirit indemnity and make system construction proposal.The paper is divided into introduction, main text and conclusion parts.In the introduction part, by the two typical cases, the author point out that break contract spirit indemnity debate intensely in the academic and judicial and discussion is needed. The main text is divided into four parts. In the first part, briefly introduced our system of spirit indemnity, then pointed out that in our current context of practice and theory, we should support break contract spirit indemnity. Breach of contract causing moral damage, harm personality interest and moral interest, and should be compensated.In the second part, Introduction of Legislation and Judicial Situation. Break contract spirit indemnity, our legislation does not expressly. Only the Supreme Court"the Explanation about Determination to Spirit Indemnity"is limited to spirit indemnity in infringement complaint. Our judicial practice in dealing with spirit indemnity cases, the attitude and the results is different. Among them, some courts began to support break contract spirit indemnity, is a welcome improvement, although the claim did not specify the basis.In the third part, Introduction of Other Countries and International Harmonization of Legislation on Break Contract Spirit Indemnity of the Provisions. Other countries and international harmonization of legislation mostly recognize the moral damage existing in the breach of contract and provide for compensation. Because of the different legal background, the capacity of the extent is different. France and Germany widely recognize. United Kingdom and United States in principle, deny the exceptions taken positive attitude. International harmonization of legislation is a clear positive views held by legislation.In the fourth part, Introduction and Refutation the Objections, Analysis the Reasonableness of Establishing Break Contract Spirit Indemnity. Introduce representative of the five grounds of objection and refute inappropriate and inadequate place. From the three aspects of full compensation requirements, the objective reality, improvement the civil liability and legislation, analysis the reasonableness of establishing the system of break contract spirit indemnity. Pointed out that our China should abandon the"spirit indemnity exclusively belong to Tort"the shackles of the old theory, acknowledging that the moral damage existing in the breach of contract and constructing the relevant system to protect the mental interests of the victim in violation of the contract.In the fifth part, Putting Forward the Recommendations of the Construction of the Break Contract Spirit Indemnity System. From the theoretical basis and legislative basis, through analysis the Elements of break contract spirit indemnity and expanded explanation of the existing legislative provisions, proposed method of constructing the system. In order to prevent the flooding of break contract spirit indemnity and the emergence of malicious litigation, to eliminate the factors do not apply, describes the scope of the applicable contract and the limitation principles, in order to balance the interests of the gains and losses, to maintain fair and stable trade, but also to security the rationalization of system.In the conclusion part, in view of the background of break contract spirit indemnity cases frequency but the lack of effective solutions, poses again that our country should break the shackles of the old theory as soon as possible, recognizing break contract spirit indemnity is reasonable, and efforts to build and improve our country's break contract spirit indemnity system.
Keywords/Search Tags:Break contract spirit indemnity, Liability for Breach of Contract, Tort Liability, Comparative Law, Coincidental Liability, Predictable Rules, System Construction
PDF Full Text Request
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