On Non - Damage To Property In The Default

According to the traditional civil law theory,the liability for breach of contraa and tort liability were considered to be entirely different liability systems. The function of contract law was classically interpreted as to protect the damage of expect interests and trust interests of the contract,and only compensate for property damage.And only can the tort liability compensate the non-property damage.Once breach of obligation resulted in non-damage,contract-abiding party can only appeals to breach of contract obligation and tort liability coinciding system,by tort suit to obtain compensation.This paper questions the points of view mentioned above,and insists that there is some contract,of which the subject matter is to obtain non—pecuniary interests.In this kind of contract, the performance of the contract interests is actually the contract-abiding party's mental state when the contract has been performanced.So the relief of the non—pecuniary damage is to protect expect interests of the contract.It is unreasonable to exclude non—pecuniary damage from contract relief with the particularity of this expect interests of contract.In addition,in the case of Begleitsscheden,the injured party's rights could not fully protected by using the liability concun'ent theory through litigation.Meanwhile,if the inhere benefits damages could not consist independent cause of sue,the injured party's non—pecuniary damage could not protected by tort law.So the author suggests that the compensation for non—pecuniary damage should be included in the liability for breach of contract.This dissertation starts with the definition of the non—pecuniary damage,studies the comparative law to get out of some meaningful references,analyzes the possible cases of non—pecuniary damage in two types contracts,and demonstrate the justification of the compensation for non—pecuniary damage being included in the liability for breach of contract.By commenting on specific judicial practices in Mainland China,this paper gives some legislative suggestions.This dissertation consists of five parts apart from preface and epilogue.The first part is the summary of non—property damage caused by breach of contract.The author first clarifies the concept of "non—pecuniary damage" both in connotation and extension,then sates the distinction between "non—pecuniary damage" and "moral damage" to draw the conclusion that the extension of "non—pecuniary damage" is larger than that of "moral damage", and therefore defines the concept of "non—pecuniary damage" in this dissertation which includes physiologic of psychological anguish as a result of breach of contract,or loss of amenities and of expectation of life.At last,the author summarizes the features of non—pecuniary in breach of contract,and its possible cases in some kinds of contracts.The second part is the study in comparative law.It introduces the different attitude towards compensation for non—pecuniary damage in breach of contract in different countries.By the study on countries in Continental law system and Anglo—American law system,we find that many countries have break through the restriction that compensation for non—pecuniary damage in breach of contract can only be claimed in the realm of tort law,and have given support to the point that the compensation for non—pecuniary damage should be included in the liability for breach of contract.Many countries have developed restrictive provisions about the types of contract apply to compensation for non—pecuniary damage in breach of contract.All of those are helpful to build institutions of compensation for non—pecuniary damage in breach of contract in our country.In the third part,the author proves the rationality of compensation for non—pecuniary damage in breach of contract.Firstly,the author criticizes some scholar's views about the compensation for non—pecuniary damage in breach of contract,and demonstrates that the opposite theories are untenable,which include unpredictability,difficulty of assessment and abuse of discretion right of judges,evidence and trade barriers,and then points out the soundness of compensation for non—pecuniary damage in breach of contract by means of refuting all of those views above.Secondly,the author analyzes two types of contracts:In one of them,such as tourism contract,the performance of the contract interests is actually the mental state of the eontract—abiding party when the contract is fulfilled,and it is possible to predicted,so this non—pecuniary damage should be remedied by liability for breach of contract.;In the contract of Begleitsscheden,some non—pecuniary damage could not consist independent cause of sue as to invoke tort law remedy.And even the non—pecuniary damage can consist independent cause of sue,by using the liabilities' concurrent theory through litigation,the injured party's fights could not fully protected.So it comes to the conclusion that it is necessary to enlarge the scope of contractual liability, and give legal remedy to non—pecuniary damage in breach of contract.At last, with the analysis of expansion of contractual liability,advantages of contractual liability comparing to tort liability,and the justification in law of compensation for damage,this part provides a theoretical basis to the claim that compensation for non—pecuniary damage in breach of contract should be included in contractual liability.The fourth part is the demonstration analysis of the compensation for non—pecuniary damage in breach of contract in mainland China.In the theory, attitudes towards this issue are quite different,because some of the scholars agree with it,and some are not.In many cases relative to this issue,most of the judges have supported the claim that compensation for non—pecuniary damage in breach of contract should be included in contractual liability,however they didn't point out the legal basis.Besides,the author introduces the legislative provisions according to this issue in our country,and finds that it is lack of clear and detailed regulations.The fifth part is construction of the system of the compensation for non—pecuniary damage in breach of contract.The author emphasizes the limits to this compensation.It must conform to the common rules of compensation in breach of contract,including principle of exclusion of commercial contract,of damage reaching to some extent,of predictability,and principle of law of causality.Secondly,it gives suggestion that we can dassify the cases of compensation for non—pecuniary damage in breach of contract.These types of contracts include:The contract,the purpose of which is to provide happiness or help people remove the emotion of sadness;The contract,breach of which leads to physical discomfort and inconvenience in life;The contract,which provides special service for marriage or funeral;The contract,the subject matter of which is souvenirs including special spiritual interests,etc.Thirdly,this dissertation discusses the method of compensation for non—pecuniary damage in breach of contract,and the calculation method of consolation money,so as to be the reference for judges in judicial practice.In the end,for the situation that it is lack of clear legislative provisions about the issue in our country,the author gives suggestions of revision clause of Contract Law.