Service Contract Relief Path Of Compensation For Mental Damage Research

Mental damage compensation system has experienced a long-term process, the scope of damagecompensation is also changing as society changes, the mental damage compensation system in China hasgone through from scratch, from simple to mature development process, and become important hot topic inthe field of civil law theory and practice.Current our country has established the system of compensationfor mental injury, but they are mainly discussed within the category of tort,law stipulates clearly the partiescan be filed a tort lawsuit claims compensation for mental damage, the mental damage compensation canbe relieved through the liability for breach of contract, the law did not make clear a regulation in ourcountry, academic circles there are two very different points of view, which occupy the mainstream statusof negation said don’t admit that apply to mental damage compensation, liability for breach of contract andthat the damage could be addressed by concurrence of liability based on tort suit,the author hold differentpoints of view, the traditional tort relief path exists shortcomings in litigation, and through the tort reliefalso can’t solve all the default compensation for mental damage problem. Default mental damagecompensation legal basis lies in the violation of the designed to protect and satisfy the spiritual interests ofthe contractual obligations, such contractual obligations by contract contents, purposes and principles ofintegrity and derived, therefore, mental damages shall be based on liability for breach of default, thepossibility of the establishment of the relief path with theory, at the same time also has the foreignlegislative experience for reference, Spirit damage compensation system is mainly to protect the spirit ofinterests, with the emergence of personality right materialized phenomenon, spirit damage may appear allaspects in society. At this time if you still will spirit damage limited to infringement of domain, will protectthe co-action of people, in view of this, the author argues that the compensation for mental damage ofdefault relief is limited to contain the satisfaction and protection for the interests of the spirit of servicecontract, and puts forward specific ideas around this premise. This paper points four parts:The first part of a service-oriented spirit damage relief present situation and problems of contract. Thissection by listing typical case illustrates the default mental injury the traditional relief way, namely, underthe circumstances of the concurrence of liability based on tort liability compensation for mental damage isput forward the request, but it also produced a series of problems: the judge to compensation for mental injury to the victim according to liability concurrence, the violation of the contractual obligations asliability concurrence, and decided against the default of mental damage compensation, liability concurrencetheory into the misunderstanding of liability concurrence; Because of the difference of liability for breachof contract and tort liability, the harm to pay, if asked the victim must give the compensation for mentalinjury tort claims, means that the victims have to give up the contract suit a variety of interests, such asliquidated damages clause or the deposit clause, the burden of proof, exemption reason and the statute oflimitations on convenience, this will undoubtedly bring inconvenience to the victim’s right relief, under nonharm default because no tort and spiritual damages exists objectively, the hard to avoid appear right remedythe blank; Also in the actual case, the victim is often based on liability for breach of contract claim contractthe interests of the loss, but if put forward the mental damage compensation request, you need to passinfringement lawsuit argues that two v. consolidated will no doubt cause low efficiency of litigation.The second part of the service contract validity analysis of default compensation for mental damagerelief. Through this service contract spirit damage compensation function covers the breach of contract andtort, instructions in the service contract of compensation for mental injury tort relief cannot satisfy servicecontract characteristics. Function of system of compensation for mental injury to the victim compensationand comfort, and will not be because of the dualistic liability legislation to distinguish and differ somewhat,due to the fundamental difference between tort law and contract law embody the autonomy of private law,so in the service contract does not cause liability setting default relief path to distinguish the chaos. That isdamage compensation in addition, from the concept of civil law, through the compensation for mentalinjury liability for breach of contract claim, not only conform to the requirements of fairness and justice ofcivil law, also can make up for the harm of payment system.The third part of the service contract default compensation for mental damage relief of comparisonusing for reference. The author focuses on the common law of Britain, the United States, the provisions ofthe civil law of Germany, France and the European unification method, through the comparative analysis, itcan be seen in the default for mental damage compensation system, countries have undergone a processfrom negation to affirmation, for compensation for mental injury caused by default in the service contract,while countries have some differences in treatment methods, but the same is under the condition ofexception to admit that the compensation for mental damage of default relief, and that breach the contract and legal basis of compensation for mental injury is the default.The fourth part of the service contract in our country spirit damage compensation relief of breach ofcontract, the author on the basis of the former three chapters try to put forward their own legislativeproposals, the applicable limits of compensation for mental injury claims will default in contains thesatisfaction and protection for the interests of the spirit of service contract, through the expansion ofcontract law and civil law general principles of the relevant clause legal basis of compensation for mentalinjury as a default, when the parties filed a lawsuit, and allows the victim to select based on liability forbreach of contract or tort liability compensation for mental damage; On the elements of compensation formental injury in the default for specific probes into the main body, the existence of breach, direct causalrelationship and the degree of mental injury in the four aspects of the requirements; On the amount ofcompensation for mental damage, the author thinks that, in general, use discretion principle andcombination of restricted amount of compensation principle, allows the judge discretion according to thecertain plot, but not more than three times the material loss highest; In exceptional cases, if the restrictedamount of compensation principle cannot effectively make up for the loss to the victim, the judge should beaccording to the specific plot impartial judgment, not restricted by the principle.