| Currently, the Contract Law in our country does not support the compensation for spiritual damage caused by default. Once the tourists suffer the spiritual damage,they can only institute a lawsuit to seek economic relief with regarding the serious spiritual damage caused by violated personal rights and interests as the reason,according to the 22 nd item in Tort Liability Law. This way can only relieve the spiritual damage of tourists caused by violated personal rights and interests, rather than the spiritual damage of tourists caused by wasted traveling time. This means that the insufficient protection for the contractual purpose of tourists is apparently defective. Therefore, it is necessary to incorporate the compensation for spiritual damage into the range of default responsibility for organized travel contract, in order to make the rules of taking default responsibility for organized travel contract break through the general rules in Contract Law to some extend.The primary issue of legislation to support the compensation for the spiritual damage is to discuss its legitimacy. This dissertation considers that the spiritual benefits of organized travel contract are externally predictable benefits of performance, thus the request to support relevant compensation for spiritual damage conforms to the rules of predictability. Although to classify the wasted travel time as non-property damage is more rigorous, it is not accordant with the reality of our country. The significance of this performance benefits in organized travel contract already obtains general social identification, hence to compensate in the pecuniary form when the benefits suffer serious damage is appropriate.The difficulty of legislation to support the compensation for spiritual damage caused by default of organized travel contract is specific theoretic problems andpossible common problems in practice. Since travel activities are relatively particular,the compensation for spiritual damage caused by default of organized travel contract has several specific problems. In terms of subject, the subject of rights and benefits is tourists, however the subject qualification of particular tourists is worth discussing.The infant, decedent and fetus should not be treated as the subject of rights and benefits due to the deficiency of basic recognition of tourism. In aspect of the subject of responsibility, it should adhere to the privity of contract to regard the agency transferring travel activity, with direct contractual relationship with the agency organizing travel activity and tourists, as the subject of responsibility; and represent it to select performance assistants, except public transportation operators, to take the compensation responsibility. With regard to the affirmation of breach behavior, the main question is what kind of behavior is adequate to result in serious spiritual damage. It is only affirmed through formal standard like hotel classification by stars in current judgment, and exclude strongly subjective virtual standard. Nonetheless,the author proposes to apply with combination of them. In the case of exemptions,because Contract Law adopt strict responsibility, force majeure should tend to affirmation from subjective viewpoint, and support the exemptions of restricted traffic flow and congestion in the scenic area and similar situations.In aspect of amount calculation, it should refer to present principle and method of calculation for the compensation of spiritual damage and adjust properly; continue to insist the principle of judge’s discretion and the principle of distinguishing spiritual damage; as well as use the complete compensation principle in property damage for reference. In addition,it is inappropriate to regard the different levels of regional economic development and economic capability of the default party as reference factors. Nevertheless, it should emphasize on considering the difference of individual tourist as well as the subjective malice and profitability of the default party. |
