A Study On Contract Types Which Are Applicable For Spirit Indemnity

At present, mainstream theory in our country still insists on compensation for mentaldamage can only be based on the provisions of Tort Law, but in the judicial practice,proceedings under Contract Law have been lodged by contracting parties，inherent theorycan’t stop people seeking remedies according to Contract Law. In order to help in the judicialpractice, through the analysis and comparison of typical cases at home and abroad, this papertries to discuss legitimacy of spirit indemnity in terms of Contract Law and summarize thecontract types which are applicable for spirit indemnity.In addition to the preface and epilogue, this paper is divided into four parts.The first part: mainly introduces the cases of spirit indemnity in breach of Contract inour country’s judicial practice and explains the development of this issue in foreign countries.Quoting three typical domestic cases，this part tells us: We need to establish the system ofspirit indemnity based on Contract Law; through introducing foreign legislations and cases,this part expect to provide references about this issue.The second part: The legitimacy of spirit indemnity in breach of Contract in specificcontract types have been analyzed in this part. Based on the explanations of the changes inCivil Law, the functions of Contract Law and the damage compensation rules, this partsuggests that: With modern civil law paying more attention to substantive justice, the theorywhich spirit indemnity can only be based on Tort Law has been broken; The rule of spiritindemnity in breach of Contract can truly achieve the functions of Contract Law which isaimed at encouraging trade and protecting creditors; Moreover, spirit indemnity in breach ofContract also conforms to the theory of predictability.The third part: mainly explains theoretical basis about how to find out some specificcontract types which are suitable for spirit indemnity. By introducing the meanings ofcategorization, basis which should be followed in the process of typing and the standards ofcategorization, this paper pointed out that：Spirit benefit protection principle, comprehensiveprinciple and principle of caution must be followed in the process of typing; At the same time,this paper tells us: The essential characteristic of such contracts which are suitable for spiritindemnity is that those contracts contend spiritual interests which are very important for them, therefore we can typing based on the contract contents.The fourth part: basing on the development of China’s judicial status, following thecontract contents and the causes of mental damage, this part comes up with specific contracttypes which are applicable for spirit indemnity. When talking the question of spirit indemnity,this paper distinguishes it into two situations: concurrent liability and liability for breach ofcontract solely. Because the theory of concurrence liability essentially gives contractingparties the options that they can sue according to Tort Law or Contract Law, and consideringthe default party interests, Contract Law should allow spirit indemnity be filed under thissituation. When it comes to the case of liability for breach of contract solely, the contractswhich are applicable for spirit indemnity include: the contract whose purpose is special, thecontract whose subject matter is special or whose transaction time, place and mode is special.