On The Breach In The Spirit Of Damages

When someone suffers psychological loss from others'breaching the contract between them, the sufferer can lodge a complaint for compensation. That is a relief way of breach of contract called as the compensation for moral damage caused by breach of contract. Compensation for moral damage due to tort is unambiguous in both civil law and judicial practice. However, compensation for moral damage due to breach of contract is not definite for a long time.Most legal scholars in China have negative attitude to compensation for moral damage caused by breach of contract. They figure that if the plea of illegality supports moral damage which is unpredictable in the contract, the commercial transaction is not convenient because of the contracting risk will increase for the contractor. Furthermore, we cannot easily estimate the moral damage caused by breach of contract and collect enough evidences so that the judge probably has too much discretionary power. Moreover, compensation for moral damage caused by breach of contract can replaced of moral damage caused by tort for the aggrieved party in the condition of coincidence of civil liabilities. But, the author gives the different viewpoint of that the denial viewpoints above are not supported without enough convictive reasons, and they are more likely to make confine as forbidden.In recent years, an increasing number of parties request courts to support lawsuits of moral damage compensation while there is no explicit legal document about compensation for it in China. Thus courts give different judgments including that most courts refuse the claim of compensation for moral damage by breach of contract due to lacking of relative legislative authorities, or judge from coincidence of civil liabilities. Meanwhile, a few judges break down the ossified limits to support moral damage compensation for justice. Furthermore, other judges wind up the cases through mediation to avoid the undefined solution way of compensation for mental damage by breach of contract. It is obvious that to prevent the abuse of judge's power of discretion, the demand of a definite theoretical analysis is necessary.Above all, the author indicates that it is meaningful to deeply analyze the necessity and feasibility of building a system for compensation for mental damage by breach of contract in China from theory and practice, which is benefit to citizen interest, transaction security, justice of society, avoiding judicial chaos, and also to improve legal construction. This paper presents a comparative analysis of legal precedents and the status of legislation about compensation for mental damage by breach of contract at home and abroad. Meanwhile, a principle of compensation for moral damage by breach of contract relative to present situation is also provided.