Moral Damage Of Contract Law Relief

It is a consensus that emotional distress damages can be only recovered through tort law in academics of the judiciary and civil law in China. However, with the gradual increase in people's standard of living and quality of life, especially the spirit interests, catching more attention, the types and quantities of the contracts that aim at enjoyment of spirit rights have increased, and related disputes also become more numerous. It inevitably becomes the focus of controversy that whether the emotional distress damages can be beyond the bounds of tort law and be applied in the field of contract law. In response to this focus, this dissertation begins at the meaning of contract law remedy for the emotional distress, studies the positions what the major countries or regions take in this issue, the status quo of the relevant legislative and judicial situations in our country, and the attitudes of scholars. Based on this, the author analyses the feasibility, necessity and types of remedies in the contract law for emotional distress, and ultimately draw own conclusions. This dissertation can be divided into six parts in structure in addition to the introduction and conclusion.In the first part, the overview of the remedies for emotional distress in contract law tries to determine the meaning of it. Emotional distress is the state or consequences of disinterests suffered by the victims, whose consequences do not necessarily connect with infringement, but may also be a result of the arising from the failure to perform the debt. According to the principle that related remedies should be provided when the law is violated in the civil law, the corresponding relief should be provided as long as there are emotional distress that arrives at the level of legal requirements. Emotional distress damages relief of contract law refers to the situation that one of the parties who are parties in a contract, suffered the disinterest state or consequences due to the other party does not carry out its obligations under the contract or do not meet contractual obligations, should be provided remedies in accordance with the principle of utter compensation.In the second part, according to the comparison study of the emotional distress damages remedies in the contract law, it is found that there is no formation of relatively stable uniform rules in American and English law, and the emotional distress damages remedies in the contract law only exists in some exceptions. As the legal and cultural traditions are different, the function of those rules on China's relevant legislation is relatively limited. The relevant provisions of France, Japan and Switzerland law are more broadly, the German Civil Code and the Civil Code of the Taiwan region will be revised to reflect that the emotional distress damages that belongs to the tort liability extend to civil liability for breach of contract has been the trend of the times.In the third part of our study is on the status quo of our legislative and judicial situation about this subject. Our legislation is not clear, neither explicitly rejected, nor clear affirmative. It is commonly said that there is no direct legal basis, but only can find rules associated with this accordingly. As a result, the remedies for the emotional distress in contract law is not adopted in legislation status quo in the judicial practice but some judges do valuable attempt in some cases. That the legislation is not clear and the confusion in judicial practice has serious impact on the unity of our country's legal system, and then need to be improved.In the part four, the author focuses on introduction and review of China's academia views on this issue. First, the scholars who hold definite theory explain their ideas from different angles. "Exception theory" holders believes that it is not allowed that requested compensation for moral damage in the suit of breach of the contract., but for exceptions, in cases that liability for breach of contract and tortious liability coexist, as well as some given contract occasions that as to average ideas it is easy to foresee that emotional distress is easily triggered, creditors should be allowed to request compensation for mental damage. The "legitimacy theory" scholars try to seek the validity of this kind of remedy under the binary systems of the infringement and breach of contract. Other scholars protest to use the compensation system for a waste of time for damage in the tourism contract in some civil law countries. Secondly, in China, negating the spirit of the damage may get relief through contractual liability continues to occupy the views of mainstream status, and the reasons mainly reflected in the foreseeable rules and responsibilities competing aspects. The author rebuts these two reasons respectively.Part five is an important precondition for the arguments, in which the author analyzes the feasibility and necessity of the relief of the contract for moral damage. Firstly, with regard to the spirit of the Contract Law damage relief and predictable rules, in contracts such as tourism contracts, or service contracts that do not cause bodily injury, the parties entered into the purpose of the contract is to be agreed to the services of psychological and spiritual happiness relax and enjoy. Moreover, if the party who provide services does not fulfill its obligations, or do not meet their obligations agreement, the purpose for which the parties entered into of the contract can not be achieved. Under such circumstances, predictable rules become precisely the basis for the damages that the rules of mental distress damages are applicable under the circumstances of breach of the contract. Secondly, with regard to relations between the damages for the spirit distress in the contract law and punitive damages, the author believes that, in accordance with the distinction between punitive damages and, the compensation rules in the application of contractual liability would not change the nature of and functions of compensation. Thirdly, according to the relationship between the spirit injury damages remedy on the contract law and the protection of the right of personality, the author believes that in modern legal system, expansions of the scope of protection of contract law and of the scope of emotional distress damages is at the same time, and in today's society, the trend to strengthen the protection of the right personality has provided an opportunity for the development of the integration of the two and will be conducive to better protect the rights and interests of citizens' personality. Finally, restrictive factors are brie discussed. Part six is the analysis of the type of relief for spirit of the injury in contract law. The article no longer excludes liability competing cases, but setting the overlap of non-infringement liability and responsibility as a standard, separates the relief in contract law for moral damage into two circumstances, non-liability overlap and liability overlap. In the non-liability overlap cases, the author advocates referring to the common law jurisprudence rules, and generalize our judicial practice systematically, with the introduction of the "objective contract" concept, and further divided into tourism service contracts, service celebration contracts and other types. In the case of overlap of responsibilities, it should be general to allow the victim's right to request compensation for moral damage, regardless of its legal basis. Our legislation should not too much emphasis the gap of the legal effect between liability for breach of contract and tortious liability in, but recognize that the responsibility, the burden of proof principle of shared responsibility and liability on the premise of the two elements are different, and as far as possible narrow the distinction on the legal effect. Particularly on the issue of compensation for moral damage, as long as mental damage suffered by the parties come to the requirements for compliance with the law in extent and scope, regardless of the relief basement, infringement responsibility or liability for breach of contract, the law should give explicit support.