| The tourism contract is a kind of spiritual interest one in which the tourists mainly search for thefeelings of amusement and sharing. When the illegal behavior of the touring operators leads not to realizingthe aim of the contract, the tourists could gain mental compensation. But in china, there are not someenough protections about the mental distress compensation of the breach of contract in the legislative andjudicial practice. That is why our country denies its existence and admits the mental compensation whichthe infringing behavior leads to.The essay is divided into four sections which explain the necessity andfeasibility that China establishes the mental distress compensation system of the breach of tourism contract.The theoretical analysis of the mental compensation system for breach of tourism contract is helpfulfor us to understand the theoretical significance of this system. It begins with the conception of thecompensation of mental distress; then continuing to introduce the relations between the tourism contractand the mental damage compensation; the last is to the necessary elements of this sort of system of thespiritual damage compensation.To be exactly, we analyze it from five contents-the subject qualification,the touring operators breach of contract, the subjective fault, the ineffective result and the casual relation.To demonstrate the necessity and feasibility of the spiritual distress compensation system for thebreach of tourism contract needs to start from analyzing the spiritual feature of tourism contract; thecontract mainly embodies its spirit. Since its content is mental, when the breach of contract appears, thecompensation it causes should be gained, to this, it is very easy to understand for the people. It isindispensable for the promotion of the lawsuit efficiency. Deeply, whether or not the tourism lawsuits arewell solved with directly affects the economic development of our country. Besides，to protect the tourists’spiritual interests is just adhering to the law sore.The feasibility of the system starts with the law characterof the tourism contract. Since the general contract could be protected in law, then, the compensation for thebreach of tourism contract should be legally protected. So the legal feature of tourism contract provides thefeasible base for the spiritual compensation. The function of the legal transplantation may be thought afeasible reference.We may see the legal obligations of the mental distress compensation for the breach of tourism fromthe relative countries and districts. The paper introduces some stipulations of the breach of contract of the countries of the Civil Law, such as Germany, France, Japan, the Taiwan district of China. They take adenial attitude firstly, later, they accept this view slowly and start to have some stipulations legally, andFrance and Japan only admit it as a legal precedent. The essay introduces the legislative and judicialprovisions of the breach of contract of the countries of the Common Law, for example, England andAmerica. They also experience a process from negation to acceptance about this kind of spiritualcompensation of the breach of tourism contract. Some international treaties also have the stipulations aboutthe breach of contract. Whichever country both of them is, they agree with the spiritual distresscompensation of the breach of contract. Our country may learn some useful knowledge from thosecountries.The present legislative situations and system conception of the spiritual distress compensation for thebreach tourism contract in China need begins from the present legislative situations and judicial practices ofthe spiritual distress compensation of the breach tourism contract, then, we may see, China needs establishthis kind of spiritual distress compensation system. In legislation, it must have its position. What’s more, wemay limit its scope of application. Especially, there are some certain stipulations in the standard andmethod of the spiritual damage compensation.Finally, to establish its position of the spiritual distress compensation for the breach of tourismcontract in Chinese legislation system, the author advises that there should be some additional contents inthe113thand119thlegal articles of the present Law of Contract of China.We many increase a clause as itsthird content in the113thlegal article, following as,"as to the non-property losses that is caused by theparty in the breach of contract, another party in the contract has right to attain the spiritual distresscompensation". We may add a clause as its third content in the119thlegal article, saying,"In the tourismcontract which mainly provides the tourists with the mental amusement and enjoyment, if the tourismoperator violates the obligations of the contract, the tourists may require the other side for compensating themental distress". The compensation question will well be coped with which is caused by the breach ofcontract. The compensation of property loss and non-property damage both gets the legal explicitprotection. A more important point is that it is very helpful to refine the standard and method of mentaldamage compensation system for the breach of tourism contract. |
