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Research On The Mental Compensation System In Breach Of Tourist Contract

Posted on:2021-02-07Degree:MasterType:Thesis
Country:ChinaCandidate:T T ShaoFull Text:PDF
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The essential attribute of tourism is spiritual enjoyment.The tourism contract has the characteristics of spiritual enjoyment,time limit and comprehensive payment.The spiritual interest is the most significant attribute of the travel contract from other contracts.The purpose of the tourist contract is to obtain spiritual enjoyment.Therefore,the breach of contract by the tour operator will inevitably cause the mental damage of the tourist.In view of the issue of compensation for spiritual damages in breach of contract of travel contract,there are two viewpoints of affirmative and negative in the academic circles of our country,but the arguments for the claim that the moral damage compensation is in violation of the predictability of the contract and the amount of compensation are difficult to calculate are not fully convincing,and more and more scholars are beginning to recognize the provision of breach of contract for the moral damage of tourists.In the legislation,although the current legislation stipulates the system of liability competition,the default negligence of the railway contract breach of moral damages,but there is not clearly stated that it cannot be applied,the "Contract Law" does not expressly stipulate that the loss of damages is only property damage,this also leaves room for local courts to hear relevant cases.Injudicial practice,local courts have different outcomes for such cases,but in general there are fewer supporting cases.The reason that the court does not support is not to deny the existence of mental damage in the breach of the contract,but to consider the damage.There is no legal basis for breach of contract relief.At present,some countries in the Anglo-American legal system have recognized the moral damage compensation for breach of contract in the form of jurisprudence in the practice of trials.Many countries and regions in the civil law system have also established a system of compensation for breach of contract mental damage.Therefore,in combination with China's current theoretical status,legislative status and judicial status,as well as relevant extraterritorial laws,it is necessary for China to establish a compensation system for damages for travel contract breaches as soon as possible.Moreover,it is justifiable to compensate for the moral damage caused by breach of contract in the tourism contract.The compensation for moral damage has value independence.The reason for this is the existence of the fact of mental damage.It is not only applicable to the tort liability.The spiritual interest is the tourist after the performance of the tourism contract.The expected benefits that can be obtained and the compensation for the loss of moral benefits do not exceed the expectations of the parties.There is a relief gap in the liability competition system stipulated by China's law.The compensation for moral damage in the tourism contract is in linewith the requirements of the principle of full compensation in the contract law.It is also the requirement of the contemporary contract law to pursue substantive justice,and comply with the development trend of the spirit damage compensation system.On this basis,this paper believes that we can establish the compensation system for the compensation for spiritual damages in China's tourism contract by clearly stipulating the compensation for spiritual damages in breach of contract in the future civil code and expanding and interpreting the existing laws.In order to avoid the abuse of the right of action by tourists,the compensation for moral damages in the liability for breach of contract of travel contract should stipulate strict constituent elements and clarify the determining factors of the amount of compensation for moral damages in breach of contract,thereby reducing the subjectivity of the judge's discretion,and then determining a more reasonable amount of compensation.
Keywords/Search Tags:Tourism contract, liability for breach of contract, liability competition, compensation for moral damage, civil code
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