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Mental damages of Breach

Author: LiZuo
Tutor: ChenKaiZuo
School: Sichuan Academy of Social Sciences
Course: Civil and Commercial Law
Keywords: Liability for breach of contract Infringement complaint Compensation for moral damage Concurrence of Liabilities
CLC: D923
Type: Master's thesis
Year: 2011
Downloads: 41
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Abstract

Breach of the spirit of damages due to breach of contract cause counterparties suffered severe mental damage, the injured party may bring a breach of contract complaint requests compensation for moral damage breach remedies. Literally, the liability for breach of a breach of contract damages spirit belongs, but not find any support in our current law also applies to mental damages in actions of law and judicial interpretation. Give moral damages for infringement claims to relief, whether or Reality judicial practice in China's civil law theorists are no objections. However, with the growing concern about personal spiritual interests in judicial practice more and more and more cases of mental damage arising from the breach, whether for breach of contract lawsuit should be given compensation for moral damage, become long been a highly controversial legal issues. Chinese scholars whether the problem most of the negative attitude that moral damages in the contract with unpredictability, can apply to a breach of contract complaint, the contracting parties will undoubtedly increase support for mental damages in actions for compensation for mental damage the risk of contracting, is not conducive to encourage trading. A result of breach of the moral damage, also exist difficulties the Evidence and loss estimates will result in the judges discretion too large, and moral damage caused breach, the victim can in Concurrence responsibility, in order to access to mental damages filed a tort against, without having to put forward the complaints of breach of contract. This author has different views that deny that there is no good reason, and will restrict more reasons as prohibited grounds. Although our legislative documents not expressly provided for breach of contract complaint can be applied to mental damages, but in recent years, in judicial practice, the parties based on the default of the counterparty, and requested the court to support mental damages growing number of lawsuits, the court in the case of to this problem, judgments vary, most of the cases due to lack of legal basis for categorically denied the right to breach of the parties request the compensation for moral damage, or choose to use the rules of tort law from the point of view of the responsibility of competing verdict . Also judge cases fair, breaking legal rigid to support the spirit in the individual contract claims damages. The option of mediation concluded to avoid breach moral damage compensation qualitative. Visible, if we can not theoretically reasonable explanation is given full demonstration, over time will cause judicial confusion and abuse of the discretion of judges. Therefore, I believe that, in order to protect the interests of citizens and safeguarding the security of transactions, social equity and justice, to prevent judicial confusion as well as to promote the construction of China's legal system, it is necessary from both theoretical and empirical, in-depth discussion of the need to build a breach of moral damage compensation system in China and feasibility. Author uses comparative analysis method, to study at home and abroad about breach moral damage compensation jurisprudence and legislative situation, combined with the current situation of our country, to build a breach of contract law for moral damage compensation system.

Mental damages of Breach

Abstract

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