On The Legislation Of Compensation For Moral Damage In Breach Of Contract

Compensation for moral damage in breach of contract refers to a away of redress through which the victim is able to sue for compensation when breach causes serious moral damage. Civil law theory in China denies compensation for moral damage in breach. Some scholars regard liability for breach as just property liability rather than other styles of liability, so they don't support compensation for serious moral damage caused by breach. As practice's developing, however, many cases upon moral damage in breach appeared, which requires judicial redress for the victims. But according to the traditional civil law theory, we can't find support for this redress. Victims in special occasions failed to be compensated under the denial theory. The tradition denial theory is harmful to the justice of law and it doesn't fit the trend of protection of man's spiritual benefits.The traditional denial theory relies on the distinct division of liability between tort and breach. This division sets limit that moral damage can be compensated only when it is caused by tort, so moral damage caused by breach failed to be supported by law. This causes some problems, on one side, liability between tort and breach can't be divided in actual life as clearly as in theory. When tort and breach concur, the victim can only sue on the basis of liability of tort, which in fact limit the right of litigation. On the other side, there are many special cases on contract, such as traveling contract, which involves no tort, but the moral damage is so huge and direct that it can't be ignored. This type of contract includes spiritual benefits and is aimed at providing happiness or getting rid of pain. The goal of contract can't be reach because of breach. Moral damage is obvious because of the loss of the predicted spiritual benefits. In the traditional civil law theory, the damage won't be compensated. Law failed to protect the victim's legitimate benefits. Justice can't be realized.The main reasons why traditional theory denies compensation for moral damage in breach of contract include concurrence of liabilities, foreseeability, act certificate and business cost. As for concurrence of liability, the mainly function of civil liability is to offer compensation and redress for damages of rights and property. Therefore, the extent of compensation has nothing to do with concurrence of liabilities. Though'foresee ability'is an important basis of compensation for damage, as the special contracts referred above, the moral damage of the victims is still able to be judged by the judge according to common people's cognition standards. Certificate for the fact of damage can also be judged by the judge in this way. Certificate is difficult in every field of compensation for moral damage. That can't be taken as a reason to deny compensation for moral damage in just field of contract. As for the problem of business cost, effective trusting ought to be moderate. Only when compensation is moderate, will it be possible to avoid rise of business cost and commerce unsteadiness. Therefore, traditional denial theory is lack of basis.There is relevant legislation on compensation for moral damage in breach in some foreign countries, which can be taken as reference under strict limitations. Law in our country hasn't given support to compensation for moral damage in breach of contract, but in judicial practice, court decisions which give compensation for moral damage in breach of contract have already existed. It is not only an expansion of compensation for moral damage, but also great efforts for justice court decisions. It proves that legislation for compensation for moral damage in breach contract is in need. It is the requirement of justice and embodies the importance a modernized law-ruled country attaches to"people". It fits the trend to protect spiritual benefits and makes much sense.Through taking foreign law as reference and combining with our judicial practice, our country can adopt a legislation model as'general forbiddance with exceptional permission'. In concrete legislation, on one side, setting out from the existing law, we can establish our compensation for moral damage in breach of contract though"extending explanation"for existing law. But limitation should be given to the types of contract which are applicable. The types can be determined through cases. On the other side, the writer is trying to make legislation design for compensation system for moral damage in breach of contract. Firstly, the liability rule of compensation for moral damage in breach of contract should be"no fault responsibility principle"; Secondly, the prerequisites of compensation system for moral damage in breach of contract should be including breach of contract, damage, and the causality. As for extent of compensation, it depends. In concurrence of liabilities, if compensation is available when damage is caused by tort, it should also be supported in compensation of breach; otherwise, it can't be supported; As for the special contracts which include spiritual benefits themselves, the writer propose to take this occasion as a independent type of compensation for moral damage in breach of contract.The development of practice and modern law require us to attach importance to"people"and people's spiritual benefits. They also require us to support compensation for moral damage in breach of contract through legislation."The life of law lies on practice rather than logic"We should break through the tradition and make new creation in judicial practice. Only in that way, are we able to construct a modernized law-ruled social and bring modernization and civilization to our country.