On Compensation For Moral Damage In Breach Of Contract

The traditional civil law theories think on that the liability for breach of contract is a kind of property responsibility and its system function is compensation. So the liability for breach of contract should not include the compensation for moral damage. The compensation for moral damage can only be limited to the realm of tort law. According to this kind of theories, the academia of our country has made a clear distinction between the liability for breach of contract and liability for tort. According to this division, compensation for moral damage in breach of contract can only be claimed in the realm of tort law. This dissertation contests to this view and thinks on that it is an objective reality that the spirit in some contracts is damaged by breach of contract and can be predicted too, it is insufficient to compensate the damage through coincidental liability. so, the compensation for moral damage should be included in the liability for breach of contract. We should build a general principle that compensation for breach of contract is allowed. But, in order to prevent the protection of spirit benefit being ad infinitum enlarged and the compensation from being abused, we should strictly control the application the compensation for moral damage in breach of contract by law. This dissertation includes five chapters except preface and epilogue. Chapter one puts forward the question of compensation for moral damage in breach of contract. The contract law of our country has not made the regulation to compensate for moral damage in breach of contract, and the current legislations limit the compensation for moral damage within the range of the tort law. However, with the development of society, breaches of contracts have really caused the moral damage to the other part in some contracts. And the cases in which compensation for moral damage was claimed have appeared in the court. According to the principles of flexibility and fair justice, the judges have had a legal precedent of suitable compensation for moral damage in the liability for breach of contract already. Chapter two enumerates scholars' views about the compensation for moral damage in breach of contract and carries on evaluation and analysis to them. Our country currently has not made a clear regulation to compensation for moral damage in breach of contract. So the scholars have heavy dispute about this question. Denying takes the mainstream on this problem. But some scholars have put forward the opposite views, too. Though this kind of sound is fainter, I think these kinds of thoughts are more farsighted. Moreover, through the evaluation and analysis of the views which are put forward by the scholars to deny the compensation for breach of contract, we can find out that these reasons can't become the obstacles which hinder compensation for moral damage in breach of contract. Chapter three carries on research to the question of compensation for moral damage in breach in terms of comparative law. Regardless of civil law system or common law system, the trend of compensation for moral damage in breach of contract is obvious. It has already become the general trend in the world. Some countries belonging to civil law system have broken the restriction that there must be express regulations in the law to compensate for moral damage in beach of contract. Though the countries belonging to common law system refuse to compensate the moral damage in breach of contract in principle, but they have sentenced the compensation for moral damage to some contract cases in the judicial practice, and have carried on the type to the contract of compensation for moral damage through the form of the legal precedent. Some international documents, have already stipulated the compensation for moral damage in breach contract in the form of legislation. Chapter four proves the necessity and feasibility of compensation for moral damage in breach of contract. It is an objective reality that spirit is damaged and can be compensated in breach of contract. No matter from the development trend of compensation for moral damage or the expanding trend of interests protected bycontract law, the compensation for moral damage should be included the liability of breach of contract. Because the design of coincidental liability is not perfect and the liability for breach of contract and tort have a lot of differences, so it is not favorable to choose tort law to protect the interests and there is "blank area"between liability for breach of contract and liability for tort. We should abandon the view that the liability for breach of contract is only limited to property loss. It also includes the moral damage according to the principle of complete compensation. Chapter five carries on system design and type research to the compensation for moral damage in breach of contract. I think we should establish the a general principle that the compensation for moral damage in breach of contract is allowed. At the present stage, "lose"can be interpreted to include "property damage"and "moral damage"in order to supply the legal basis on compensation for moral damage in breach of contract. In order to prevent the compensation for moral damage in breach of contract from being abused, we can use the measures of force majeure clause, agreement of contract, predictable rule, restraining of principal part and type research on the contract to strictly control the application of compensation for moral damage in breach of contract.