On The Justification And System Construction Of Default Compensation For Spiritual Damage

Default compensation for spiritual damage is a remedy for breach of contract that the aggrieved party who has suffered severe spiritual damage caused by default has the right to bring an action, petitioning for compensation for spiritual damage.There are no reasonable grounds to negate this legal system. Whether moral damage exists or not should be judged from the matter of fact, then the law. If the order is reversed, we will fall into the odd circle of conceptualist jurisprudence. That breach of contract, like tort, can cause severe spiritual damage is the actual basis of default compensation for spiritual damage. Meanwhile, default compensation for spiritual damage is the optimized option after coordinating value clashes between justice and order, fair and efficiency, and the equilibrium of interests between individuals and interests between individual and society. And it's also the logic consequence of gradual progress of the regime of compensation for spiritual damage and accords with the objective tendency of expansion of contractual relations. Furthermore, economic theory of law and the theory of concurrence in civil law can also be it's theoretical basis. Because liabilities for breach of contract is divided strictly from liability for tort in our legislation, default compensation for spiritual damage doesn't has it's legal basis in China. However, judges often break through the shackles of the present regulations to realize individual justice, from which we can see how seriously the law divorces from practice.Default compensation for spiritual damage is recognized in a certain extent by laws of the case law system, the continental law system and international unified legal documents. It provides not only practical examples for us to demonstrate the appropriation of this regime, but also models for reference. Basing on theoretical analyses, foreign experiences and China's actual conditions, the author considers that we should take the model of "general forbition with exceptions for permission". Certain articles in contract law should be interpreted extensively to supply with legal basis. Exceptions should be divided into different classes, which need the effort of people in educational and practical circles, in order to realize social justice.