| Before the Civil Code of the People’s Republic of China was issued,the parties claimed that the compensation for mental damage could only be resorted to infringement litigation.However,this approach has limitations.When the breach of contract causes property losses to the non-breaching party,it may also bring irreversible and irreparable mental damage,so it is necessary to adequately remedy it in breach of contract.After the promulgation of the Civil Code,Article 996 recognizes the compensation for breach of contract for mental damage in the field of personality right.Its premise is that one party’s breach of contract damages the other party’s personality right,so this article is not applicable in the case of breach of contract but no violation of personality right.At present,the rule has been a major breakthrough to the previous theory and practice,but it still has some problems in the application of the rule,which need further research on refine the specific application requirements.Moreover,the study of the application problems will provide an analysis path for the construction of comprehensive system of breach of contract mental damage in the future and promote the development of the diversity of civil liability relief ways.Through the study of the existing provisions and related judicial practice,there are mainly four problems in the application of compensation for breach of contract mental damage.First of all,there is a lack of clear provisions on the right to claim;Secondly,there are some differences in the application of rules;The third,the scope of compensation is limited;The fourth,the amount of the identification regulation is too abstract.Since the previous laws and regulations did not clearly stipulate such type of compensation,and the court practice is not entirely consistent,the results of judgment in practice are different.It affects the accuracy of judicial adjudication and the certainty of discretion.There is a large space for interpretation and application of this rule and the problem of legal application is also prominent.Therefore,it is necessary to further explain and perfect the application of Article 996 of the Civil Code.First of all,the basis of the rules for breach of contract mental damage is clearly defined and the application of the compensation for mental damage in the field of breach of contract and infringement is defined,so as to facilitate the litigant’s litigation;Secondly,in the specific judicial application,the review of the contract type,the identification of the causal relationship between the breach of contract and the loss of personality right,the "serious" degree of mental damage and the applicable restrictions should be considered comprehensively to unify the judgment thinking and limit the arbitrariness of the judge’s discretionary power;Moreover,further clarify the scope of compensation for breach of contract mental damage,and expand the scope to special contract fields to meet the needs of judicial practice;Finally,by comparing the factors considered by courts at all levels when determining the amount of compensation,and drawing on the existing experience of tort compensation for mental damage,the amount of compensation and the determination standard are determined,so as to realize the comprehensive relief of mental damage by law. |
