The Research Of Tourism Contract’s Breach Of Mental Damage Compensation

With the improvement of people’s living standard, people not only pursue highquality of material life, they also ask for a high level of spiritual life at the same time.To keep up with the development of the times, tourism has become the essentialelement. Because of its increasing importance in community economy, it has alreadybeen included in our national economy and social development plan. At the same time,the type and amount of disputation on tourism contract is increasing constantly. In thetrial practice, tourism contract’s purpose can’t be is unrealized, due to defaultbehavior of the travel agency. Tourists always claim pecuniary loss compensation.The problem about the mental damage of breach of tourism contract is being widelyconcerned in theoretically and in practically.In practice, travel agency offers a widerange of tourism service, and the organization and tour activities arranging areespecially typical. The tourism contract in this essay adopts a narrow definition whichmeans that travel agency arranges the journey in advance, directly offer or byperformance assistants offer transportation, accommodation, catering, sight-seeing,tour guide or tour leader and so on, above two tourism services that mentioned. Thecontract that tourist pay for travel expenses in total is restricted to general organizedtravel contract,The first part of the paper demonstrates the moral damage compensation of thecontract breach. At present, the theorists at abroad and home deny that the moraldamage compensation applies to the contract breach. The main reasons are as follows:moral damage of the contract breach is unforeseeable; moral damage caused bycontract breach is unprovable; moral damage of the contract breach is equal topunitive damages; moral damage of the contract breach increases transaction cost;moral damage compensation of the contract breach enlarges the discretion of judge.The paper proves that these reasons are untenable through criticizing the abovereasons denying the system. At the same time, by referencing the foreign legalpractice, it concludes that moral damage compensation of the contract breach isreasonable and operational under certain conditions. The second part talks about the necessity of moral damage compensation inbreach of travel contract. After solving the problem of moral damage compensationapplying to the contract breach in the first part, the second part analyzes anddemonstrates from the following aspects: the nature of the travel contract decides toneed moral damage compensation; moral damage of the tourists is difficult to relieveby tort law; moral damage of the tourists is difficult to relieve by liability concurrencesystem; moral damage caused by contract breach demands equal protection. Theconclusion is that travel contract totally conforms to the application condition of thesystem.The third part is the theoretical basis for the moral damage compensation inbreach of travel contract. Currently, the related theories about moral damage havedeveloped greatly. From the development tendency, it’s very necessary to breakthrough the fetter of traditional theories under certain conditions for protecting thetourists’ legitimate interests and forming complete legal system. This part discussesfrom the aspects of contract law’s fundamental principle, complete compensationprinciple and justice value theory, which proves that the application of this system hashad solid theoretical foundation.The fourth part is about to build the compensation system for moral damage inbreach of travel contract. This part expounds the position of moral damagecompensation in breach of travel contract in the future Civil Code, and considers thattravel contract chapter of contract law article in the Civil Code should define clearlythat moral damage compensation of the contract breach can apply to the travelcontract (a specific type of contract), gradually forming a complete legal system ofmoral damage to protect people’s spiritual interests. Finally, while allowing moraldamage compensation caused by the breach of travel agency under certain conditions,moral damage compensation by the breach should be limited to a certain range inorder to prevent abusing power and wasting judicial resources, and the componentelements and standard of moral damage compensation also are discussed.