Breach Of The Spirit Of Damages Analysis

Not applying in default in compensation for moral damage has been as common sense rooted in the hearts of those who study the Civil Code, which is called the default negation of the spirit of damages that civil law scholars have believed that breach of contract damages do not apply the spirit of contract law should be basic principles, and further pointed out that this is breach of contract and infringement of competing value systems exist. But the reality of trial practice, in the case of custody of the ashes, wedding camera case, travel cases, such as breach of contract case has supported the demands of compensation for moral damage. Practice and theory of conflict requires a new vision to re-examine the theory. As we all know our country's legal theory in particular, belongs to the civil law, particularly in Germany Now Germany and France on this issue at a negative attitude, but the German scholars have been critical, in order to compensate for the rigidity of the law, Germany created a "non-commercial property damage" of the doctrine. Civil law of France, Japan and other countries in the spirit of the legislative Example damages for breach of contract adopt a generous attitude, and even the existing laws of our objective to treat theoretically the spirit of China's breach of contract damages to amend the system in practice explore the appropriate case, breach of contract admit the principle of moral damage system is an exception.This article is divided into six parts.Introduction of sub-two pairs of the concept of moral damages and damages for breach of the spirit of the concept to define. Define the concept of connotation, so that the article has sufficient bedding.The first chapter, by doctrine and jurisprudence abroad to inspect, study abroad, the latest doctrine, seek to breach the spirit of our country set up a system of Enlightenment damages. Inspection followed by Anglo-American law, civil law and international documents. The idea of this chapter are liable for breach of the spirit abroad, and gradually damages the legal course to be recognized, certainly breach the spirit of damages ought to be, and focuses on the newly developed practice of law. Section I, the United Kingdom and the United States to introduce law to represent the spirit of the application of breach of contract damages in the classic case, with emphasis on law introduce the types of practices; Section II of Germany, France and China's Taiwan region, the legislative provisions and practice Introduce the main attitude of the mainland country; III, Introduction, "Principles of International Commercial Contracts" and "the principles of European contract law" damages for breach of the spirit of unequivocal support for the provisions of compensation, research the latest developments of international legislation of learning from them; the fourth quarter to draw conclusions developed sophisticated systems can only learn from our country can not completely deny the spirit of breach of contract damages.Chapter II of negative damages for breach of the spirit of the opinion for rebuttal. The reason why damages for breach of the spirit of the difficulties, a large reason for dissenting voices are too strong. This chapter of the spirit of liability for breach of contract damages are the difference between duty and infringement of the spirit of breach of contract damages admit hinder transactions, breach of contract damages do not meet the spirit of contract law, the characteristics of the discretion given to judges is too large, the responsibility of the competing systems can not solve breach of contract damages, such as the spirit of 11 rebuttal, said it was because he did not come to deny all reasonable conclusions. This chapter, said the reasons for the negative points over that of the negative rebuttal and summary of Say 3.Chapter III, from a positive breach of contract on the establishment of moral damage compensation system reasons. Each system has its corresponding set up the grounds, this paper argues that damages for breach of the spirit of the system set up grounds for an academic legitimacy on the feasibility of judicial practice. Sub-chapter 2, section I, breach of contract damages the spirit of the justifications for the legitimacy of the study; II, judicial practice in breach of the feasibility of compensation for moral damage.The fourth chapter focuses on damages for breach of the spirit of the applicability of the system, are the focus of the content of this article. Including damages for breach of the spirit of the way of relief, breach of contract damages the spirit of exploration and the types of damages for breach of the spirit of the limited scope of 3. Section I, our country, "General Principles of Civil Law," section 106 breach of contract should bear the civil liability provisions of the General Conditions and Article 111, Article 112 the principle of full compensation; Contract Law Article 107, Article 113 of the principle of full compensation and predictable rules interpreted as applicable, such as damages for breach of contract there is nothing wrong with the spirit, on the contrary, its restrictive interpretation of the lack of basis; II, will breach the spirit of damages is usually the case in order to meet the lost, pain, sorrow and mental suffering as the core will divide them into four types, and with the gradual improvement of the development of the practice, I believe that the type of breach of contract damages the spirit of the most reasonable manner; III, breach of contract compensation for moral damage compensation must be restricted, would limit the application of rules and types innovation; summary, a reasonable interpretation of existing law and to limit the application of breach of contract damages for mental conditions.The concluding part, summed up the whole chapter should not dismiss the breach of the spirit of damages, on this issue should be forward-looking.