Basic Research On The Right To Claim For Mental Damages Due To Breach Of Contrac

Article 996 of the Civil Code stipulates that if the injured party chooses to claim liability for breach of contract for serious moral damage caused by breach of contract,"the injured party shall not be affected to claim moral damage",which in judicial practice gives rise to two understandings: claim for breach of contract and claim for tort liability.The basis of the claim for moral damage compensation for breach of contract,there are shortcomings: first,the theory of conjoint application of claims is difficult to be consistent;second,the moral damage compensation under the framework of the breach of contract makes the dual system of remedy for breach of contract and tort liability confusion;third,moral damage compensation and breach of contract is not compatible,the claim for breach of contract may cause the scope of moral damage is not Fourthly,it is not appropriate to set up a separate clause for the situation of moral damage caused by breach of contract.In contrast,the choice of tort liability claims as the basis for the claim to the provision has three advantages: first,the moral damage compensation has the characteristics of tort liability,the existing legal rules to define it to avoid the problem of confusion in the relief system,but also in the specific amount to determine a clear judicial interpretation of reference;second,the application of tort claims to apply the principle of full compensation is conducive to the moral damage compensation to soothe and fill the realization,to avoid the impact of the rule of foreseeability under the rule of breach of contract;third,in the majority of possible tort scenarios,the third party and the victim to establish a tort legal relationship more clearly.Choosing the right of tort liability as the basis of the right of mental damage compensation does not mean two lawsuits and two trials.The litigation mode which is compatible with the basis of the right of claim for mental damage arising from breach of contract should be based on the traditional object of litigation theory.The action for breach of contract and the action for infringement of mental damage compensation do not constitute repeated litigation,so the objective and simple combination method should be adopted as the litigation scheme.The judge should strengthen the interpretation of the additional litigation claims in the prosecution stage,so as to achieve a one-time settlement of the dispute.