The Tourism Spirit Of Breach Of Contract Damages System

There is very important theoretic value and practical significance to research on establishing the system of compensation for moral damage in breach of travel contract in our country.The first part demonstrates the real necessity of establishing the system of compensation for moral damage in breach of travel contract in our country. Firstly, the thesis uses four typical examples to show the embarrassing situation when our judicial practice met with cases of moral damage in breach of travel contract. Secondly, the author points out that the current legislation for the moral damage compensation in breach of travel contract in our civil law system is still blank. Finally, three types of moral damage in breach of travel contract are analyzed including personal injury, special property damage, moral damage but not infringement. And the author emphatically analyzes the remedies to protect the tourists' moral interests. Based on analysis above, we make it clear that it is necessary to establish the system of compensation for moral damage in breach of travel contract.The second part talks about the relevant basic issues. There are three main sections. The first section is about travel contract including the concept, the classification, properties and characteristics. The author thinks travel contract is one contract which travel agency provides tourist service and the tourist pays for the expenses. Thus the bodies of travel contract are limited to travel agency and tourist. The author constrains the travel contract to be the package travel contract in this thesis. Then on a basis of differentiating from different views of legal nature of travel contract, the thesis draws a conclusion that travel contract is a new type contract. Travel contract is different from other contracts whose outstanding characteristic is expecting moral interests. The second section tells the evolution history of compensation for moral damage. Based on the gradually expanding scope of the moral damage compensation system, the evolution history is divided into four different stages. Due to the moral damage in breach of the special contract is closely related with travel contract, the author will specially discussed this issue below. The third section is about the system of compensation for moral damage in breach of travel contract from the comparative perspectives. The author investigates the legislations of moral damage in breach of contract of the most representative countries and regions, and comes to a conclusion that the moral damage in breach of travel contract is gradually to be recognized and set down. The key point of view in this part is to emphasize the characteristics of travel contract, combined with the expanding trend of the scope of moral damage compensation and the comparison of related legislations, so as to arrive at a conclusion to establish the compensation system for moral damage in breach of travel contract.The third part talks about the legitimacy of the compensation system for moral damage in breach of travel contract. Beginning from the negative views, the author analyzes these views and points out they don't make up the obstacles for the compensation system for moral damage in breach of travel contract. Then in the basis of the relevant legislations, the author researches for the theoretical reasons for the moral damage compensation system in breach of travel contract. The author considers the main reasons to establish the compensation system for moral damage in breach of travel contract are justice value theory, the freedom of contract theory, rational predictability rules, the complete compensation principle, the commercialization theory and the expansion of contract theory. Among them, the author puts emphasis on the commercialization theory. Based on the further reasoning of commercialization theory, we can draw a logical conclusion that moral damage in breach of travel contract should be remedied. But the commercialization theory has its deficiencies. The right of claim for waste time established through the commercialization theory is a transitional system in the specific historical period, which would be replaced by the compensation system for moral damage in breach of travel contract.The fourth part is about the preliminary attempts to build the compensation system for moral damage in breach of travel contract. The author suggests building one chapter for travel contract in the contract law, as further to establish the compensation system for moral damage in breach of travel contract. The author discusses the main contents of the compensation system for moral damage in breach of travel contract, including the analysis of constitutive requirements, methods of bearing liability, the compensation standards and the limitation of liability. The compensation system for moral damage in breach of travel contract should apply to the principle of no-fault liability. Facts of serious moral damage and causality are regarded as the constitutive requirements. The property methods and the non-property methods should be adopted in the methods of bearing liability. The basic principles of the compensation system for moral damage in breach of travel contract are compensatory principle, amount limit principle and judge's discretion principle.