论旅游合同违约的精神损害赔偿

发布时间：2019-01-22 16:34

【摘要】：现代社会民事权利中的人身权得到广泛重视,与之相伴随的精神损害赔偿问题成为民法领域的热点且核心问题。但是,传统民法基于侵权责任与违约责任的二元结构,确立了基于侵权责任可以主张精神损害赔偿,而基于违约责任则不可以主张精神损害赔偿的原则,致使受害人只能固守违约责任与侵权责任之竞合理论,精神损害赔偿与合同利益不能兼得而只能择一要之。造成这一结果的原因是多方面的,其中一个重要原因是对合同功能的理解上存在偏差,不仅仅在于满足商事交易以实现经济利益之追求,而且亦是实现某种精神性目的之载体,旅游合同即时如此。与其他以经济利益为出发点的服务合同不同,旅游合同以享受特殊的精神利益为标的,如果违反了这种合同,不仅会给游客带来经济损失,更会影响游客的情绪,损害游客的精神利益。为了保证旅游合同的公正、公平,不仅要补偿游客的经济损失,更要将游客的精神利益放在首位。现实社会之需要亦得到民事立法的积极回应,法国、日本等国家的立法例对违约精神损害赔偿持宽松的态度,我国台湾地区也在修订后的民法典中持肯定的态度,以德国为代表的立法承认旅游合同等以追求精神利益的合同,可以以违约责任为请求权基础主张精神损害赔偿。这是合同法的重要制度创新,也是对现代民事主体精神追求的回应。我国立法应该吸收这一成果,在合同法修订过程中对其予以体现。但是,在这一过程中,要对违约责任中精神损害赔偿适用范围、与侵权责任法的衔接、精神损害赔偿的确定等问题予以深入研究,以实现民法制度之间的体系性衔接。
[Abstract]:The personal right of civil rights in modern society has been paid more and more attention, and the problem of compensation for mental damage has become a hot and core issue in the field of civil law. However, the traditional civil law is based on the dual structure of tort liability and breach of contract liability, which establishes the principle that based on tort liability can claim mental damage compensation, but based on breach of contract liability can not claim spiritual damage compensation. As a result, the victim can only stick to the theory of concurrence between the liability for breach of contract and the liability for tort, and the compensation for spiritual damage and the interests of the contract can not be obtained simultaneously, but can only be chosen. There are many reasons for this result, one of which is the deviation in the understanding of the function of contract, which is not only to satisfy the pursuit of commercial transactions in order to achieve economic interests, but also to achieve a certain spiritual purpose. This is immediately the case with the travel contract. Unlike other service contracts based on economic interests, tourism contracts are aimed at enjoying special spiritual benefits. If such contracts are violated, they will not only bring economic losses to tourists, but also affect tourists' emotions. To the detriment of the spiritual interests of tourists. In order to guarantee the fairness and fairness of tourism contract, not only the economic loss of tourists should be compensated, but also the spiritual interests of tourists should be put first. The needs of the real society have also been positively responded to by civil legislation. France, Japan and other countries have adopted a lenient attitude towards compensation for spiritual damage in breach of contract, and Taiwan has also taken a positive attitude in the revised Civil Code. The legislation represented by Germany recognizes that tourism contracts and other contracts pursuing spiritual interests can claim compensation for mental damage on the basis of liability for breach of contract. This is an important institutional innovation of contract law and a response to the spiritual pursuit of modern civil subjects. The legislation of our country should absorb this achievement and embody it in the course of the amendment of contract law. However, in this process, the scope of application of compensation for mental damage in liability for breach of contract, the link with the law of tort liability, and the determination of compensation for mental damage should be deeply studied in order to realize the systematic connection between the civil law and the civil law.
【学位授予单位】：哈尔滨商业大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.6

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