On Compensation For Moral Damage In Breach Of Contract

The traditional civil law theory insists that the compensation for moral damage only be available in the realm of tort law,the scope of the liability for breach of contract does not include the compensation for moral damage.However,any of the legal system had to accept complex challenges of real life with the development of society,the question of moral damage compensation of contract breach deserves increasingly social attention.For the comprehensive protection of the legitimate rights and interests,some foreign and international legislation has recognized that compensation for moral damage caused by breach of contract is fully available.However,legislation of our country does not clearly stipulate the moral damage compensation system caused by the breach of contract,a number of judicial cases of our country in recent years about the issue are also a bit confusing.In this paper,judicial administration and the legislative status quo about moral damage compensation are analyzed by the method of comparison,attempting to explain that the building of the moral damage compensation system caused by the breach of contract is urgent and operable.In order to prevent the compensation for moral damage being abused in breach of contract,we should classify the cases of compensation for moral damage in breach of contract and strictly control the application of the compensation for moral damage in breach of contract through wielding specific applicable rules.The dissertation consists of six parts apart from preface and epilogue.The first part:Overview of moral damage in breach of contract.The author first clarify the concept of "moral damage",this article holds that "moral damage" is natural person's psychological and physiological pain because of their personal rights,property rights and other rights be infringed.In the next place,there is no meaningful distinction between "moral damage" and "non-property damage",I do not strictly distinguish between the two terms.The second part:Comparative law study of the compensation for moral damage in breach of contract.This chapter analyses judicial administration and the legislative status quo of moral damage compensation in the civil law country,the Anglo-American legal system and international legal documents from the perspective of comparative law analysis.We can see that moral damage caused by breach of contract in the countries is recognized in varying degrees,or clearly stipulated in the spirit of the law,or confirmed through the cases.The ways of acknowledging are different,the Anglo-American legal system classify the types of compensation for moral damage in breach of contract through cases;the Continental legal system admit moral damage relief in breach of contract lawsuit through the introduction of some theory or amend legal provisions;some international provisions establish the compensation for moral damage in breach of contract lawsuit through specific legislation.The third part:The necessity of building the moral damage compensation system caused by the breach of contract in our country.This chapter discusses that the moral damage should be relieved in breach of contract law from a legal point.Firstly,moral damage in breach of contract is an objective existence,and has a compensatory.Secondly,it is the requirement of social equity conception and enhancement on human rights protection.Thirdly,making for improving our contract legislation.Fourthly,the principle of full compensation calls for the establishment of moral damage compensation system.Fifthly,liability concurrence theory does not protect non-defaulting party's damage of mental benefits adequately.The fourth part:Criticize some scholars' negative views about the compensation for moral damage in breach of contract.This chapter is one of the focus articles,and analyses negative views about the compensation for moral damage in breach of contract from the following six aspects,pointing out the unreasonable parts.This chapter rebuts the foresighted barrier,the evidence barrier,the computation barrier and the transaction cost barrier, analyzing that the judge's abuse of discretion is not an insurmountable difficulties,the liability for breach of contract compensatory and fugitiveness of moral damage compensation are not contradictory.The fifth part:This article tries to classify the cases of compensation for moral damage in breach of contract.I learn from successful cases of the Anglo-American law system and our country's successful judicial practice,pointing out that the contract types applying to moral compensation for damage are summarized as several kinds of the following:the purpose of the contract is the enjoyment of moral interest or to get rid of some pain and annoyance;the breach of contract causes specific items with significant emotion to permanent extinguish or being damaged;the contract dispute about the wedding,funeral and other important anniversaries;the breach of contract causes physical discomfort or inconvenience; the training contracts or education contracts which have a significant impact on the life;other contracts break which can cause pain and trauma of victims.The sixth part:The restrictions of compensation for moral damage in breach of contract and risk diversification mechanism.First of all,an analysis of specific rules applicable to compensation for moral damage in breach of contract.Secondly,the author points out that those service industries should strengthen self-discipline,and improving professional liability insurance of service industry.