Research On Compensation For Non-Pecuniary Loss In Breach Of Contract

Non-pecuniary loss for breach of contract has been an controversial but still unsettled legal subject.The traditional view insists that there is no issue of non-pecuniary loss compensation for breach of contract,while other scholars express opposition.The opposing views emphasize that non-pecuniary loss should be compensated for breach of contract liability,rather than being involved in the Tort Liability Law exclusively.Social development has a more thorough and higher level of protection for non-pecuniary rights.Due to the vagueness of the relevant legislative and theoretical regulations,there are different levels of confusion in the judicial practice,which is not conducive to the full protection of non-property rights in the contract.Therefor,it is necessary to reform of non-pecuniary loss for breach of contract.This article attempts to start with a basic overview of non-pecuniary loss compensation,and further analyzes the necessity and feasibility of non-pecuniary loss compensation,and then considers the construction of a non-pecuniary loss compensation system in breach of contract,with the expectation that a fuller remedy is provided for non-pecuniary loss.This article is mainly divided into the following four parts:The first part introduces a question.In judicial practice,the non-pecuniary loss of breach of contract have a difficult predicament in poor compensation.With the expansion of the liability for breach of contract under the social development,more and more intersections and infringements of breach of contract and infringement,the traditional binary system liability system cannot provide comprehensive compensation for damage in all cases.The second part is a basic overview of non-pecuniary loss.Non-pecuniary loss is relative to property loss,which can be compensated according to the law.In addition to natural persons with civil capacity,non-perceived natural persons,fetuses and legal persons can be the subject of non-pecuniary loss compensation under certain conditions.Besides,the value of adjustment and consolation should be included in the function of non-pecuniary loss.The third part consists of theoretical analysis and comparative study of non-pecuniary loss compensation in breach of contract.On the one hand,not only from the relationship between liability for breach of contract and tort liability,but also from the perspective of contract purposes and loss compensation,it is necessary to expand non-pecuniary loss compensation to liability for breach of contract.On the other hand,the affirmative cases of non-pecuniary loss for breach of contract have certain judicial value,while the reasons for the negative theory are untenable at all.Non-pecuniary loss compensation system in breach of contract has adequate theoretical necessity and feasibility.In the comparative law,relevant national legislation and rules in the case law provide a useful reference for our country to construct a reasonable non-pecuniary loss compensation system.some courts have demonstrated their support for non-pecuniary loss in breach of contract.Theoretically,In the fourth part,the author consider the construction of non-pecuniary loss compensation in breach of contract in China.The construction of the non-pecuniary loss compensation system for breach of contract in China can be based on the binary system for breach of contract and tort liability.It can adopt the mode of "general affirmation and emphasizing by enumerating" and extend interpretation of existing laws to open the way of compensating for the non-pecuniary loss from breach of contract.The application of the system should be consistent with predictability,minimum damage level,offsetting of faults and offsetting profit rules.