On The Compensation For Mental Damage By Breach Of Contract

The compensation for mental damage is always a controversial legal problem .However, many countries have admitted the necessity and importantvalue of the mental damage compensation system in the legal system.At present, it's well-established that tort law protects mental damage while it's still controversial whether or not it should be admitted into cases of contract breach. Despite the denial of mental compensation by traditional theories, it has in legal practice been creatively applied in contract disputes. This dissertation introduces legislation and modes of protection in other countries as well as international uniform legislation about mental compensation, and examines the puzzlements brought by the creative application of law in legal practice and the lagging behind of legislation through the analysis of cases involving mental damage caused by contract breach in china. This dissertation is to outline the defects of the mental compensation system, and puts forward the strategies for perfection of the legislation in china. The article is divided into three parts including thec comparative law of mental damage compensation of contract breach, the Existence basis for mental damage compensation of contract breach, the construction system and law control of the mental damage compensation of contract breach.The first part of the dissertation introduces the development history of mental damage compensation system, and points out that compensation for mental damage is the outcome of social progress and economical development. In the law or the judicial practice acknowledged the mental damage compensation is now the world major part country (including our country)and the local common procedure, through breaks a contract the mentaldamage compensation comparison test inspection, looks up the variousoverseas legislations and the legal precedent, basically is approvesin the varying degree breaks a contract the mental damage compensation, only is because the various countries' concrete law environment isdifferent, holds the degree to have a difference. But our country law regarding this makes the regulations by no means,this has also created the judicial practice confusion. Strengthensbreaks a contract in the responsibility the mental damage compensationsystem research, regarding the maintenance transaction security, thesociety is fair and promotes our country legislative work all to havethe extremely vital significance. Introduced breaks a contract themental damage compensation domestic related situation, breaks a contractthe mental damage compensation overseas correlation legislation, thelegal precedent and the theory and breaks a contract the mental damagecompensation international characteristic legislation document relatedsituation. characteristics. The discussion of this part ofers a jurisprudence grounds for the construction of the compensation for mental damage system in contract breach.The second part of the dissertation analyses the existence basis for mental damage compensation of contract breach. First this part of the dissertation analyses the reasonable factors of the compensation for mental damage. Proved has broken a contract gives the mental damage compensation thenecessity. Disobeys the appointment to cause the mentalual harm, thisis breaks a contract gives the mental damage compensation the factpremise, but the traditional right infringement theory has not beenable completely to solve the damage compensation relief need. Second, the article discusses the necessity of application of compensation for mental damage caused by contract breach and discloses its theoretical grounds. In breaks a contract in the responsibility to join the mental damagecompensation is has the very great dispute the theory and the practicedifficult problem, its rationality and feasibility what in? In orderto solve this problem, the author from the theory basis, the judicialpractice need, the legal protection benefit expansion as well as andso on several aspects will perform to the traditional theory retort toelaborate. The article discusses the necessity of application of compensation for mental damage caused by contract breach and discloses its theoretical grounds. The dissertation proves its thesis to be reasonable on the contrary by appraising the counter theories, pointing out defects of them, ofering the right advices.The third part of this dissertation is the construction system and law control of the mental damage compensation of contract breach.First, this part points out the legal grounds of application of compensation for mental damage occurred in contract breach in china, which is to expand the protection scope of contract liability without explaining relevant laws expansively, such as Contract law and Civil law. Finaly, the dissertation provides some restrictive elements to restrict the application scope.Proved to has broken a contract the mental damage compensation legalcontrol. Generally believed, any legal system, once surpasses itsapplicable scope, has the possibility which abuses, breaks a contractin the responsibility mental damage compensation is so. Brieflyintroduced the reasonable foresight principle, reduces the loss rule,the contributory negligence rule and the balance of profit and loss aspect and so onrule to breaks a contract the responsibility mentalual harm to carryon the suitable rules and regulations, emphatically elaborates tobreaks a contract the mental damage compensation unique legal limit,does not ask the minor matter principle, the main body limit,litigant's agreement and the mental damage compensation legal principleincluding the law. etc. By doing this, we can restrict the application of compensation for mental damage to a reasonable scope and prevent the blind requirement for high compensation so as to achieve the legislative purpose of contract law that is to encourage deals and also protect the aggrieved party. All in all, whether to breaks a contract the mental which creates toharm gives to compensation should hold the opening the viewpoint, develops the judgement regards the question. Founded our country tobreak a contract the mental damage compensation system to have itsnecessity and the feasibility, the real life already proposed to usthis kind of request, we should face up to this kind of request andproperly perform to solve, but should not simply regarding this thekind not gather the traditional ideas the request totally to give todeny. The mental damage compensation from the right infringement domainto the contract domain development, has manifested the need which thepeople lives, conforms to the modern law development tendency.Revolves the discussion which it launches and contends, not only ishelpful to the civil liability theory consummation and the progress,has the impetus function to our human rights legislative work.