On The Mental Damage Compensation For Breach Of Old-age Care Institution Service Contract

With the rapid development of the pension service industry,more and more old-age care institution service contracts have been breached.In judicial process,the elderly usually puts forward the mental damage compensation for breach of contract by old-age care institutions.Because the old-age care institution service contract is a special type of contract.It is a non-commercial contract and has strong personal attributes.There are a lot of mental interests in this kind of contract.It is mainly manifested in the mental interests of independent existence and the mental interests attached to other rights.This interest is often damaged by the breach of contract by old-age care institutions.However,according to our current legal system,mental damage compensation is only obtained through tort litigation,and the claim is not supported in breach of contract.It will not only damage the legitimate rights and interests of the elderly,but also hinder the healthy development of the pension service industry,thereby threatening the social harmony and stability.In judicial practice,in order to pursue individual justice,some judges support the claims for mental damage compensation of the elderly in default litigation.Due to the lack of laws,this kind of judicial breakthrough is difficult to be widely recognized,and the standards for determining amounts vary.In fact,mental damage compensation for breach of old-age care institution service contract has legal justification basis.Firstly,the theory of liability concurrence cannot solve the problem of mental damage compensation when the breach of contract by the old-age care institution does not constitute the tort.Even if it constitutes the tort,the liability for breach of contract in litigation is more conducive to the protection of the rights and interests of the elderly than the liability for tort in the determination of liability.Secondly,based on the requirement of the principle of complete compensation,the mental damage caused by breach of contract by the old-age care institution belongs to the category of damage and should be compensated.Finally,in order to reflect the concept of legal fairness and justice,the same relief should be given to mental damage caused by the breach of contract and tort by the old-age care institution.Based on the realistic needs and theoretical support,we should confirm the mental damage compensation for the breach of contract by the old-age care institution.Therefore,how to build the mental damage compensation system for breach of old-age care institution service contract to protect the legitimate rights and interests of the elderly is a problem that should be solved at this stage.In order to solve the plight of the elderly's claim for mental damage caused by breach of contract by the old-age care institution,it is imperative to solve the problem of the supply of legal systems for mental damage compensation for breach of old-age care institution service contract.In the face of the contradiction between the current legislation and the social demand,it is possible to provide the legal basis for the mental damage compensation for breach of old-age care institution service contract by the expansion of "loss".Specifically,the system is mainly constructed from the following three aspects: liability fixation,the constitution and the scope of the compensation.Firstly,in order to balance the interests of all parties,the special principles of the fault liability principle,fault presumption principle,should be applied to mental damage compensation for breach of old-age care institution service contract.So this paper argues that,based on the fault liability principle,the constitution includes four parts.Namely the mental damage exists objectively,there is a breach,there is a causality between fact and breach,and the defaulter is in fault.Finally,on the basis of determining liability,it can be determined according to the mental damage compensation standards from Tort Liability Law when the breach of contract by the old-age care institution causes personal injury to the elderly.In other cases,we need to consider some specific circumstances: the principle of prior agreement,the principle of contract consideration,the degree of mental damage of the elderly,the local economic development and the specific situation of the old-age care institution.At the same time,the amount of compensation shall also be subject to the necessary restrictions on the principle of controlling the amount of compensation,the principle of negligence offset,the principle of reducing the loss and the principle of foresee.