Liquidated Damages In Compensation For Moral Damage

Compensation for mental injury only can be gained by tort action in the theory of traditional civil law. It doesn't include mental injury in damages for breach of contract. However, with the development of civil law, this traditional theory is questioned. The article illustrates the rationality of mental injury in breach of contract and puts forward the opinion of constructing this system by the way of the analysis of comparison and experimental study.In theory, it is not adequate to safeguard man's mental interest by liability for tort because there are too many differences between liability for tort and liability for breach of contract such as doctrine of liability fixation, proof burden and limitation of time. The innocent part's mental injury can't be recoverable under liability concurrence theory. Establishing the system of compensation for mental injury in breach of contract can make up this lack and comply with the development of full compensation and honest credit. It is feasible in theory.In practice, main countries'judicial practice indicates mental injury caused by breach of contract is a popular phenomenon and sometimes this injury is huge. It doesn't only belong to the tort. Mental injury in breach of contract was gained compensation in specific types of contract by different ways in many countries'judicial practice and in our country there were also successful cases. It is also feasible in practice.In legislation, it can adopt the pattern of"the principle of general rule"+"the legal control". That is, it allows the compensation for mental injury in breach of contract, and limits it in law to avoid overflowing to versus. We can adduce"The Hand Formula"to determine the amount of the mental injury. It could be more operational and practical by typing the contract to determine the amount of B (the cost of preventing the occurrence of metal injury in breach of contract).The legal theory should advance with the times. It couldn't disregard the realistic needs to hold one theory to be stable and magnificent. To incorporate mental compensation into contract liability can further safeguard man's mental interest, which is in line with the trend of modern law's development.