Compensation For Spiritual Damage Caused By Breach Contract

Damage compensate responsibility produces the form mainly has two big kinds, one is the violation damage compensate, namely the breach of contract duty undertakes compensation responsibility. Two, the abuse of authority causes damage compensate. Looked from the harm content, in universal property in harm and non-property harm, in non-property harm including spiritual harm. The author believed t hat, the violation damage compensate should include the violation spirit damage compensate, this is the basic question which this article studies, this article divides into four parts.The first part mainly introduced the spiritual, the spiritual harm, the spirit damage compensate concept, and has made the introduction to our country spirit damage compensate system present situation, again further explained the violation the essence lies in the violation rights and interests. The author believed that, the spirit is, to human's spiritual harm which the humanity altogether has, soaks in the social life aspects, regardless of in right infringement domain, in the violation domain, human's life and health, the personality power has the common in-depth essential content, namely they all are one kind of basic attribute which the human has (spirit) the manifestation, that, theoritically speaking, they between transformation is mutually one different form"the translation"the process, also is embarks from some concrete form, returns to original state it to in human's essential question, then uses other way to display again, thisis internal mechanism which human's each different right transforms, also is"the human is the myriad things criterion"the essence requests in the legal science to manifest specifically, if therefore broke a contract to the victim has created the spiritual harm, had to carry on the compensation. In our country, to violation spirit damage compensate regardless of in the legislation, the judicial interpretation, places on trial in the practice not to have the explicit support, but this does not represent the violation the spirit damage compensate to be dispensable. In fact, the violation behavior indeed can create the civil main body the spiritual harm, this spiritual harm is the objective existence. Moreover in some special contracts, the spiritual harm which the violation causes also has determinism. The author thought that,since has the harm to have to have the compensation, this is the civil law spirit, the abuse of authority has the spirit damage compensate, the spiritual harm which the violation behavior causes also must have the compensation.The second part of main solution is the violation spirit damage compensate card is a problem. Regarding the violation spirit damage compensate, approximately some two faction opposition viewpoint, namely the denial spirit damage compensate viewpoint and the denial violation spirit damage compensate viewpoint, the denial spirit damage compensate viewpoint divides into two viewpoints approximately: One, thought the personality is noble, if the personality damage, gives the money compensation to equate without doubt the human in the commodity, reduced human's value. Two, thought the personality harm cannot use the value currency weight, the appraisal difficulty, does not have the feasibility. In view of this faction opposition viewpoint, author from protects the litigant legitimate rights and interests the angle, and take most high court's judicial interpretation as basis response. But denies the violation spirit damage compensate the viewpoint quite to be many, proposed from the different angle blames, including: First, thought this kind of compensation does not conform to the law of contract to be possible the foresighted rule, can hinder the transaction the security. Second, thought provides the spiritual harm through the contract the recovery, does not have the legal basis. Third, thought if compensates to the violation spirit harm, can break through the contract relativity rule. Fourth, thought the violation the spiritual harm quantification, is unable to calculate with difficulty. Fifth, thought has the spiritual harm in the violation, may act according to the legal rule choice right infringement the request power solution, is not unnecessary in "Law of contract" the separate stipulation. Regarding the above opposition viewpoint, the author 11 has carried on the card solution. The author thought the exchange developed must cause the contract activity to be more frequent, the personal rights are also put in the specific situation during the contractual relationship, therefore the violation behavior is may create the spiritual harm. In this part of end, the system environment which existed to our country has carried on the introduction, thought our country only was bases about the spirit damage compensate legislation on the right infringement domain, has many loopholes and the insufficiency, waited for completely in further.The third part of solution is the violation spirit damage compensation system and our country law of contract docking question. First introduced the extant two kind of docking pattern: First, German pattern. Germany through creates the non-property harm commercialization theory, then way introduction violation spirit damage compensate system which stipulated explicitly by the law. Second, British and American pattern. England and US are the case-law countries, has established the violation spirit damage compensate through the legal precedent, and induced several kinds to be possible to request the violation spirit damage compensate the contract. The author believed that, our country should accept the British and American pattern, because of first, Germany uses the non-property harm commercialization theory does not suit our country national condition. The non-property harm commercialization theory is the German specific theory tradition and the economic basis product, has its superiority, has the concise quality, may provide the comprehensive protection for the violation spirit harm victim, but is precisely this kind of concise quality, the enormous freedom has decided after deliberation the power for judge, does not have in the full development situation in our country market economy, introduces the non-property harm commercialization theory possibly to be able to cause the violation spirit damage compensate magnification, limit transaction march. Second, English and US's pattern suits our country's system present situation, England and US all is in the insistence may under the foresighted rule premise, enumerated several kinds specially, has been possible to request the violation spirit damage compensate the contract. In our country's trial practice, in some special contract case spiritual harm, like the specific belongings storage contract, take provides the spirit to enjoy serves as the goal gathers same level, obtained the compensation, this with Britain and America's situation existence similarity, our country has in the legislation about may the foresighted rule stipulation, this also agrees without prior consultation happen to hold the same view with the British and American law in stipulation. Third, our country when establishment violation spirit damage compensate system, should in the law stipulate several kinds may propose the spirit damage compensate contract. Our country is the written law country, the court decision only has the reference function to other cases, but does not look like in the British and American case-law country such has the binding force, but the rich trial practice has the great significance regarding the induction summary contract type, these decisions are our country break a contract the spirit damage compensate legislation basis.The fourth part of main research is time the violation spirit damage compensate system and our country law of contract docking several concrete questions. Elaborated the violation spirit damage compensate system and our country law of contract docking macroscopic question in the previous part, but has not discussed docking the concrete question, this part involves the question includes: First, about contract typological. Summarized several kinds to be possible to request the violation spirit damage compensate the contract, and has made the concrete explanation. Second, about contract relativity. Mainly aims at the violation spirit damage compensate to be able to break through the contract relativity viewpoint, has made the concrete elaboration to the contract principle of relativity, not only explains the violation spirit damage compensate not to be able to break through the contract the relativity, on the contrary, is exactly the contract relativity principle display function domain. Third, about may the foresighted rule. Through to "General provisions of the civil law" 111, "Law of contract" 112th, in 113th"loss"the expansion explanation might the foresighted rule apply in the violation spirit damage compensate. Introduced specifically may the foresighted rule concept, explain might the foresighted rule the spirit damage compensate which caused for the violation provide an appropriate rule, elaborated has specifically been being suitable several questions which might the foresighted rule be supposed to pay attention. Fourth, about punitive compensation utilization. The spirit damage compensate mainly is carries on the spirit to the victim to comfort, gives the corresponding economical compensation, this is the spirit damage compensate fill function, gives the sanction to the party causing an injury, has manifested the spirit damage compensate penalty function, these two functions are consistent with the penalty function, utilize the punitive compensation also to be possible to solve the compensation standard and to present evidence the question. Fifth, to violation spirit damage compensate limit. May not give the consideration regarding some very small harm, this is the law did not ask the minor matter principle the inevitable result, namely the harm must achieve certain request, the law only then gives the standard. As a result of the legal person and other organization right and wrong life social organization's hypothesized personality, not impossible to look like the natural person equally to have the physiology, the psychological activity based on the natural attribute, when legal person's personality benefit suffers the violation, not impossible to have in the mental pain, also not impossible to have the spiritual harm.