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On The Tourism Breach Of Contract Damages For Mental Problems

Posted on:2009-11-10Degree:MasterType:Thesis
Country:ChinaCandidate:J CuiFull Text:PDF
GTID:2166360272476012Subject:Civil and Commercial Law
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The compensation of moral damages owing to infringement has been finalized but there are a lot of controversies in the academic community on the compensation of moral damages Owing to breaking contract. Due to China's law does not explicitly regulate whether the moral damages can be given due to breaking the contract, so in practice, in the travel contract whether or not the moral damages can be given because of breaking the contract, the penalties vary. If we can not give a reasonable explanation and demonstration in theory, I am afraid that if things continue in this way, it will cause confusion in the judiciary and abuse of discretion, and finally the inherent value of the law will undermine. Therefore, it is necessary to explore and demonstrate. This article attempts to analyze the special nature of the travel contract and the reasonability of moral damages of breaking the contract. In travel contract, the compensation should be given because of breaking contract caused by travel agents and tourists should be allowed to request for compensation. Furthermore, tourists can come up with the establishment of system in the compensation of moral damages owing to breaking contract in China's Tourism. The thesis can be divided into the following chapters.Chapter oneIn chapter one, the author analyzes the basic definitions of travel contract, breaking the contract, compensation of moral damages to define the compensation of moral damages in travel contract. At the same time, author introduces the concepts of a contract dispute and some of the points in travel contract in a number of Western countries and Taiwan.。In chapter two, the author analyzes the necessity of the compensation of moral damages in travel contract, pointing out that China's tourism disputes. From the existing laws and regulations and the relevant provisions, there is a serious gap between the travel agency's actual responsibilities after breaking the contract and the passenger's actual loss caused by travel agents. With the growth of the people's moral lives, this gap has become a big obstacle to the solution in travel disputes, which makes the value of law has been widely questioned. That is why we need to introduce a system of compensation for moral damage. Visitors should be given adequate legal remedies because of the moral loss through appropriate ways in order to better protect the people's moral lives to enjoy the needs of China's tourism industry to promote fair competition and healthy development.Chapter TwoIn chapter three, the author states the theoretical basis of compensation of moral damages in travel contract from five aspects. They are the main contents. The first aspect is the basis of compensation of moral damages in travel contract in the existing legal legitimacy. Through the "General Principles of Civil Law" article 111st, "Contract Law" article 112nd and 113rd, we can get that our country has not provided for the issue of compensation for moral damage, but it does not provide for compensation for the Prohibition of the damage. So when the party to contract does not agreed to perform its contractual obligations or does not meet its obligations under the contract agreed to pay compensation to other party's loss, here's "loss" can be expanded, and can contain moral damages.The second aspect: There is no essential difference in moral damage because of infringement or because of breaking the contract. Through the analysis of moral damage from the perspective of psychology, a conclusion can be found, that is, a negative reaction: pain or annoyance, anger, anxiety, frustration, sadness, depression, despair, and other negative emotions can be caused in people's nervous system under the stimulation of negative external factors that are behaviors of infringement or breaking the contract. This negative reaction can cause moral damage.The third aspect: the compensation of moral damages in travel contract is an embodiment of complete principle of compensation. There should be compensation for the damage and compensation for damage is a matter of fact, so "compensation for the damage"has become a truth. With the development of society, the truth can be expanded, that is, "damage" refers not only property damage, but also the moral damage. Compensation for moral damage has been widely recognized by the community. Although there is no accurate concept to be used to exchange by money, it is not negligible. The "Full compensation"that excludes moral compensation can not allow the victim to return to state before the contract or the state in which the contract can be fully performed. The state can not protect people's legitimate rights and the rule of law and can not meet the demands of justice. For these reasons, in order to better protect the legitimate rights and interests of tourists, the system of compensation of moral damages in travel contract should established.The fourth aspect: it is in line with the purpose of"Contract Law". From the nature of the contract, the nature of the travel contract does not exclude non-property interests into it, so when the non-property interests are subject to damage. "Contract Law," should provide protection, that is, that is, the non-property damage through breaking contract against the compensation law in travel contract is well justified. From the purpose of view, travel contract is to provide entertainment and enjoyment, so for a specific type of breaking the contract, tourists can request non-property damages.The fifth aspect: the compensation of moral damages owing to breaking contract in China's Tourism is the modern spirit of the rule of law the requirements of justice and the needs of the times, so we have every reason in the legislation to establish the system of compensation for breaking the contract in order to establish new law order and make the order of law to adapt to the needs of the times. Otherwise it can not fully protect people's legitimate rights and unable to adapt to the new era in the development of the requirements of the law so as to do harm to the realization of the value. In this sense, to establish the system of compensation for breaking the contract is to achieve and maintain the value of the law. The compensation of moral damages expands from infringement to contract field, which is not only the development trend of modern law, but also modern value of the natural orientation of the Civil Law.Chapter ThreeIt is the design of the system and it is also the main content. Firstly, the claim for compensation should be clear in the travel contract. The "loss" in "General Principles of Civil Law" article 120 can include the moral loss which is used in "Contract Law". Other methods including nominating the travel contract, improving relevant laws and regulations can be used to improve system-related legislation in China's travel contract compensation for breaking the contract. The second is the limitation of compensation for moral damages. The compensation should be limited. Unlimited compensation for moral damage often requires huge amounts of compensation that is not conducive to carry out transactions. The third is the amount of compensation. The calculation of the amount of compensation has been the difficult point of law and judicial in practice, for moral damage is different from property damages. Damages for moral calculation are based on the needs of different conditions and a comprehensive assessment of many factors.
Keywords/Search Tags:travel contract, breaking the contract, moral damages, compensation of moral damages
PDF Full Text Request
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