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On The Mental Damage Compensation For Breach Of Contract

Posted on:2016-06-04Degree:MasterType:Thesis
Country:ChinaCandidate:Y H ChengFull Text:PDF
GTID:2296330470952339Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
With the development of economy, people living standard rising, and thedevelopment of modern service industry, people are no longer merely content with thematerial life rich and colorful, and begin to pay attention to the spiritual world, and evenin some cases the pursuit of spiritual interests more than enjoyment of material benefits.Therefore, in order to adapt to this trend, the type of contract also become more andmore, and a lot of contracts which pursuit spiritual interests appear such as tourismcontract, wedding contract and so on. In these contracts, providing service as one of theparties breach will do great harm to the other party, and this kind of damage is no longerlimited to the loss of material benefits, but more damage to the spirit interests of theparty. But, our country has long insisted that the only infringement may demandcompensation for mental damage, so in such as above contract, the parties who is themental damage caused by default can’t request compensation for mental damage. As aresult, the interests of the parties cannot be protected, which don’t meet with therequirements of the civil law principle of fairness, also don’t accord with the principleof protecting human rights in our country. Therefore, the study of the problem ofcompensation for mental injury in contract is very necessary, and it can further improveour contract law system, and can guide the judicial practice.The article can be divided into six parts to study this question.The first part simply introduces the background of the research and significance ofthis problem, and introduces the present status of the research on this question inChina, and so on.In the second part, it firstly introduces the concept of the mental damagecompensation and function, and further discusses what is the default and its featuresthat are characteristic of mental injury. Mental damage of default not only has thecharacteristics of general mental injury such as invisibility and subjectivity, and so on,also has its own unique characteristics such as must be on the premise of legal valid contract, may be agreed by the parties, etc., which lays a theoretical foundation forrationality of the compensation for mental damage in breach of contract.Using comparative study method, the third part introduces the attitude of theproblem of compensation for mental injury in legal system countries andAnglo-American law system countries,and we can find out that both countries ofAnglo-American law system and continental law system countries have experiencedthe process that from not admit to admit on this issue. In addition, not only is thevarious countries begin to admit that may demand compensation for mental damage ofdefault, the international legislation on this issue also take a positive attitude. So tosum up, it has become the international trend of legislation that may requirecompensation for mental damage of default.First of all, in the fourth part, I use historical research methods to introduce thedevelopment of mental damage compensation system in China, from which we canfind out that our country lacks of clear rules on this issue. After that, the empiricalresearch method is used to introduce two opposite case, reflecting the chaos of thecourt when faced with the problem. Finally, it introduces the idea of scholars on thisissue in our country, that the general said it can’t ask compensation for mental damageof default, and also has a small number of scholars adopt supportive, and introducedtheir respective reasons.In the fifth part, by countering the reason of negative scholars, it is concluded thatto build the system of compensation for mental damage of default is very necessary inour country,which is one of the innovation of this article points. And then furtherdiscusses the feasibility of constructing this system in our country.The sixth part is the last part of the article text, is to provide some feasibilitysuggestions for building this system in our country. Such as if you want to ask forcompensation for mental damage of default, you must obey the strict constitutiverequirements, and contract of compensation for mental injury may be required for thetyped analysis, etc., which is another innovation of this article.Firstly, the article introduces the mental damage compensation system, thenmainly discusses the necessity and feasibility of building a system of compensation for mental damage of default in our country, and how to build the system in China. Sothat it can promote the system of compensation for mental damage of default in ourcountry, consummate our country contract law system and promote the construction ofa socialist country under the rule of law in our country.
Keywords/Search Tags:Compensation for mental damage, Liability for breach of contract, Tort liability, Mental damage compensation for contract default
PDF Full Text Request
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