论违约精神损害赔偿的正当性及适用范围

On The Legitimacy and Application Extent of the Compensation for Spiritual Damage in Breach of Contract

违约的非财产损害赔偿问题一直在理论界和实务界存在诸多争议,但是随着社会的发展,交换关系的增多,人格权日益受重视,与人身利益密切相关的一些事物或者行为开始成为合同的标的,同时追求精神利益和精神愉悦的合同也在逐渐增多。无论是英美法系还是大陆法系国家,都开始突破传统民法理论,在合同法领域为精神损害提供违约救济。目前我国立法不支持违约精神损害赔偿,但司法实践中已经出现违约精神损害赔偿的判例。非财产损害赔偿并不是先验的、唯一的属于侵权法领域,违约的非财产损害赔偿具有理论上的正当性。其在特定种类的合同中可能发生并应得到救济。

Many disputes occur on non-property damages in breach of contract both in theory and practice. Recently some contracts start to deal with the objectsclosely related to personal interests because of social development, increasing exchangesand more focuses on human dignity. Meanwhile, more and more contracts are made with the appeals for spiritual interest and emotional happiness. Not only common law but also continental law have begun to break through the traditional civil law theory and provide remedy for spiritual damage in the field of contract law. Now the compensation for spiritual damage in breach has not been enacted in Chinese legislation yet but precedents of such compensation have already been made in judicial practice. This paper points out that the non-property damages is not a priori and unique in the field of tort law and the damages of breach bears theoretical legitimacy. It can happen in some particular contracts and should be given necessary remedy.