Analysis Of Non-pecuniary Damages For Breach Of Travel Contract

As service contract which is aimed to satisfy the spiritual interests of the tourists, It isnameless contract in China’s "Contract Law", but the "Tourism Law"（October1,2013） tobe named "Travel service contract." In order to facilitate the wording in this article still usethe expression "travel contract", its meaning is equivalent to the travel service contract. Whilereceiving litigations on such contract disputes, the court will judge by the general civil lawtheory, according to which that compensations for non-property damage are only out ofliability for tort rather than responsibility for breach of contract. Thus, it is rarely to meetwith cases under which the court will order the travel operator to compensate non-property forthe tourists by the responsibility for breach of contract in practice.However, it is a fact that thenonperformance of the tour operator will make damage to the spiritual interests of the tourists.Then the rights to ask for compensations for non-property damage of the tourists will be at therisk of not being protected in comprehension. In our present legal remedy model, only whenthe tour operator constitute the tort liability or both tort liability and liability for breach ofcontract, can the tourists have the right to prosecute on the name of tort to ask fornon-property compensations (merely for mental impairment compensations legally); when thetour operator constitute the liability for breach of contract, the tourists have the right toprosecute to ask for non-property compensations on the name of being breached.Considering that it is still not defined in the Contract Law yet, while the Tourism Law isnot carried out either, there is lack of unified judgment on the non-property compensations forbreach of contract in juridical practice. Then, in order to fulfill the function to protect theprivate interests of the civil law, the undertakers in theoretical circle, the legislative circle andin juridical circle should bear in mind on how to protect interests of the tourists fully, on howto guarantee their non-property compensations when confronting with the breach by the travelagency or travel aider.The case applied in this thesis was influential, it is still of practical meanings on dealingwith disputes on tour contract though it happened morn than a decade ago. To our regrets,,Feng Jianliang’s requirement for mental impairment compensation was refused in both firstand second instance. With the development and the deepening of legal construction, more andmore similar cases and remarks on similar cases are frequently seen on newspapers or on the internet. On26th, October,2010the regulation on dealing with cases on tourism disputes wasproposed out by the high people’s court, experts cannot reach the unified opinion. In thejuridical practice of local government, some courts support the tourists’ requirement fornon-property compensations on the name of being breached, but some others will do on theopposite. On the basis of continuing study of legal knowledge, the author of this dissertationwill research on the case from the perspectives of juridical practice and f legislation,attempting to put forward feasible suggestions on the issue of non-property compensations forbeach of the contract.It consists of three part:Part one: the researching question will be put forward by the introduction of theprocedures, the disputes and the focus of the argument in Feng Jianliang case. The questiongoes: weather can the tourists prosecute the tour operators in the name of responsibility forbreach of contract, requiring for non-property compensations.Part Two: analysis of the issues involved in the case. The author will put forward his ownopinion on the basis of making a distinction between the non-property damage and mentalimpairment in the disputes occurring in tour contract, detailed analysis of the argumentfocuses also included.Part Three:From improving the relevant provisions of the existing law and judicialinterpretation and reference extraterritorial legislation judicial experience point of view,putforward some suggestions for the travel contract breach applicable non-pecuniary damages,tothe judicial interpretation and judicial practice for the establishment of a viable Relief way, sothat the interests of the damage suffered by the tourists get full compensation.On the analysis of Feng Jianliang case, the author thinks that the requirement for non-property compensations for being breached be supported by the court. We can see item111inGeneral Rule of Civil Law, item of112and113in Contract Law that though not beingdefined clearly, its complying to non-property compensations under the case of beingbreached has not been forbidden yet. Therefore, basing on the items mentioned the courtsshould make proper adaptabilities in juridical practice on the base of the general principles bythe civil law to make it legal to require for non-property damages gradually with thedevelopment of our society.