| Default compensation for mental damage is a remedy for breach of the contract that the aggrieved party who has suffered severe mental damage caused by default has the right to bring an action, petitioning for compensation for spiritual damage. Traditional civil law theory holds that the mental damage compensation only be available in the realm of tort law, especially when personal right is infringed. The liability for breach of contract is property liability. The compensation for mental distress is not available in case of breaching contract. Regarding this, the author holds the different viewpoint.This paper used the method of comparison, investigated big six methods to fasten with British and American the continental law system and common law countries legislation, theories and cases, found in legislation, though all countries on theory, case, distinctive default spiritual damage compensation system by the general development trend is absolutely forbidden to exceptions allowed. In China, through the mental damage compensation for breach to comment on the theories, but are not limited to deny the simple argue, but said through in-depth analysis of the essence, negative reason to learn something. In addition to the judicial practice in China to analyze the specific practices in China at present, the paper to judicial practice caused by the breach of mental damage relief way, and clear in our mental damage compensation establish breach practical needs. In system design, this paper claims should learn from the successful experience abroad, the proposal is in legislative model is adopted on the generally prohibits exception allowing type, and in order to prevent the interests of the victim spirit protection range too wide mental damage compensation, cause defaults abuse, puts forward the mental damage compensation for breach of the contract type. But because of the diversity and complexity of social life, we would not exhausts mental damage compensation for breach of contract, the type of trial practice the occurrence of new cases, judges, breach of contract purpose from the aspects of its consequences and damage degree and the comprehensive analysis, the judicial practice in constantly to accumulate experience, and mental damage compensation for breach of contract types is perfect. Except for the breach of contract mental damage compensation typed analysis of other restrictions the means of analysis and discussion, including: negligence offset rules, predictability rules, purely commercial contract shall not be compensation rules and the contract restrictions. In conclusion, this paper put forward the mental damage to breach the solution is both give relief, and rationally restrictions. |
