试论违约中的精神损害赔偿

Damages for Non-pecuniary Losses in Breach of Contract

无论是因违约造成的精神损害,抑或因侵权造成的精神损害,都应当进行赔偿,而且对于违约中的精神损害,仅仅依靠侵权法来保护是不够的。因违约造成的精神损害,实际上是对合同附属义务之保护义务的违反,对该义务的违反所造成的精神损害依合同法救济较依侵权法救济更佳。

This paper holds that non-pecuniary losses both in torts and breach of contract shall be remedied. But the non-pecuniary losses in breach of contract is not adequately protected by tort law alone. In fact, the non-pecuniary losses due to breach of contract is the breach of the protection duty of the contract＇s supplementary obligations. Therefore, contract law is superior to law of tort in determining the compensation for such breach.