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Research On Compensation For Mental Damage In Breach Of Contract

Posted on:2020-05-15Degree:MasterType:Thesis
Country:ChinaCandidate:Y J LinFull Text:PDF
GTID:2416330623953703Subject:Civil and commercial law
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Compensation for mental damage caused by breach of contract is a controversial but unsolved issue in China.Traditionally,it is believed that mental damage is an exclusive issue of tort liability.However,with the development of society and the application of judicial practice,unprecedented attention has been paid to spiritual interests.Cases of mental damage in breach of contract have also begun to emerge,which challenges the traditional dualistic coincidence model,then more and more scholars begin to affirm the rationality of compensation for mental damage in breach of contract.However,due to the vague legislation and theoretical contradictions,there has been chaos in judicial practice to varying degrees.The spiritual interests in the contract can not be fully protected,and the spiritual damage has already issued a call for the remedy of breach of contract liability.Starting from the basic concept of mental damage,this paper tries to further analyze the rationality and necessity of compensation for mental damage in breach of contract.Based on the needs of judicial practice and the reference and reflection of comparison,this paper abstracts a specific system of compensation for mental damage in breach of contract suitable for our country,with a view to protecting the comprehensive spiritual interests of contract parties.In the first chapter,from the concept of spiritual damage,this paper clarifies thatspiritual damage is a type of damage,which is opposite to the concept of property damage,and is the same concept as non-property damage,including physical and psychological suffering.Based on the arrangement of the relevant provisions on mental damage in the existing legislation,it is clear that the article of the law on compensation for mental damage in the contract law is in a vacant state.This vacancy,coupled with the Supreme Court's denial of spiritual damage compensation for breach of contract in tourism disputes,contradicts with the reality's demand for spiritual interest protection,which leads to different attitudes towards spiritual damage compensation for breach of contract in judicial practice.This has resulted "identical lawsuits with distinct judgment",mainly appearing in contracts involving personal rights and interests,such as passenger transport contracts,medical services contracts,tourism contracts and so on.This phenomenon can only be solved by further improvement of specific laws.From the case of refusing the claim for compensation for mental damage,the main reason is that there is no compensation for mental interests or lack of legal basis in contract.Most of the judgments of compensation for mental damage do not clearly affirm the existence of compensation for mental damage in the lawsuit of breach of contract,but support it from the perspective of compensation for personal damage by using tort law or related laws of compensation for personal damage.Only a few judges believe that the law does not explicitly exclude the existence of mental damage for breach of contract,based on comprehensive protection of the legitimate rights and interests of the parties,made a compensation judgment for breach of contract spiritual damage,but in the application of law,there is lack of the most appropriate judgment basis to support the judgment.It can be seen that the establishment of compensation system for spiritual damage in breach of contract is an urgent need of judicial practice.Chapter Two makes a theoretical analysis of the application of the system of moral damage in breach of contract: from the perspective of dualistic relief concurrence mode and right relief.It demonstrates that compensation for mental damage does not belong exclusively to tort law.This chapter makes a detailed analysis of the drawbacks of tort litigation in resolving the problem of compensationfor spiritual damages in breach of contract,especially in cases where mental damage is caused by infringement by breach of contract caused by Third Party Infringement or pure breach of contract which does not constitute an independent cause of action for tort.At the same time,the author also proves the feasibility of expanding the scope of compensation for breach of contract by reflecting on the negative viewpoint of spiritual damage in breach of contract and summarizing the positive application in judicial practice in China.The third chapter is about the construction of spiritual damage compensation for breach of contract in China.From the point of view of all countries in the world,the establishment of compensation system for spiritual damage in breach of contract can be divided into three main types,namely,the indistinguishableness in France,the typification mode in Britain and America,and the mode of “general negation and restrictive affirmation” in Germany.This paper holds that it is most appropriate to generalize and affirm the contract and type it according to the British way.In this way,we can not only prevent the generalization of the compensation system for mental damage in breach of contract to a certain extent,but also meet the needs of juridical practice: it is necessary to stipulate clearly in the general provisions of the contract that "moral loss" is the content of compensation for breach of contract;and the following four types of contracts can be compensated in judicial practice:(1)contracts with spiritual interests as its content,(2)contracts involving personal rights or special property,(3)property contracts internalized by "spiritual purposes",(4)and training contracts that have a significant impact on the future of the parties.Based on the conservative attitude of the existing legislation and academia,the current cases of compensation for mental damage caused by breach of contract in judicial practice can be solved through reasonable interpretation of the provisions of the General Principles of Civil Law and the Contract Law.But the specific application still needs to refer to the existing tort liability provisions on compensation for mental damage.But what needs to be emphasized is that the moral damage caused by the breach of contract itself is not compensated.Compensable contracts need to be objectively expressed with "spiritual purpose",which should meet the requirements of constituting breach ofcontract,predictability and severity of damage.And its specific compensation needs to "consider everything".
Keywords/Search Tags:Liability for breach of contract, Tort liability, Mental damage
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