旅游合同中的精神损害赔偿研究
发布时间：2019-05-31 16:50
【摘要】：旅游活动在人们生活中的地位越发重要,旅游合同纠纷也伴随增加。众多纠纷中,旅游合同中的精神损害问题备受争议。究其原因,首先是旅游合同履行中,旅游者遭受精神损害问题确实存在,而且数量众多,成为一个不可回避的现实问题;其次,我国关于旅游合同中的精神损害赔偿问题方面的法律法规尚不完备。所以笔者选择这个题目做为毕业论文题目,希望对旅游合同中的精神损害赔偿问题有更进一步的认识,寻求该问题的答案,为我国该方面的理论研究尽绵薄之力。本文一共分为三个部分:第一部分:该部分笔者阐释了我国在旅游合同中的精神损害赔偿方面法律空白的原因,明白问题的产生的背景是研究解决该问题的基础与前提。接着,笔者对旅游合同的含义、旅游合同的特殊性进行了分析,无论是在实务界还是在理论界,只有承认旅游合同中的精神损害赔偿问题,方能彰显法律的公平正义。第二部分:在该部分中,笔者分析了在旅游合同的具体履行中,违约行为可能会侵害旅游者的期待利益,也可能侵害旅游者的固有利益,或者二者均受到侵害。因违约行为侵害的法益的不同,笔者将精神损害赔偿进行了分类。接着分别阐述了如何认定违约精神损害赔偿和侵权精神损害赔偿,以及在责任竞合下的处理。第三部分:在该部分中讨论并确定旅游合同中精神损害赔偿的原则,用比较法的观点探讨了国外确定精神损害赔偿的主要方法以及其优缺点,结合我国旅游案件情况,笔者提出了在我国的旅游实践中,旅游合同违约的精神损害赔偿金额的确定办法。
[Abstract]:Tourism activities play a more and more important role in people's lives, and tourism contract disputes are also increasing. Among many disputes, the moral damage in tourism contract is controversial. The reason is, first of all, in the performance of tourism contracts, tourists suffer from mental damage does exist, and the number of them is large, which has become an unavoidable practical problem. Secondly, the laws and regulations on spiritual damage compensation in tourism contract are not complete. Therefore, the author chooses this topic as the topic of graduation thesis, hoping to have a further understanding of the problem of compensation for spiritual damage in tourism contract, to seek the answer to this question, and to make a modest contribution to the theoretical research in this respect in our country. This paper is divided into three parts: the first part: the author explains the reasons for the legal blank of spiritual damage compensation in tourism contract in our country, and understands that the background of the problem is the basis and premise of studying and solving the problem. Then, the author analyzes the meaning of tourism contract and the particularity of tourism contract. Only by recognizing the compensation for spiritual damage in tourism contract can we show the fairness and justice of law, both in practice and in theory. The second part: in this part, the author analyzes that in the specific performance of tourism contract, breach of contract may infringe on the expected interests of tourists, or may infringe on the inherent interests of tourists, or both of them may be infringed upon. Because of the different legal interests of breach of contract, the author classifies the compensation for mental damage. Then it expounds how to determine the compensation for spiritual damage in breach of contract and the compensation for moral damage in tort, as well as the treatment under the concurrence of liability. The third part: in this part, we discuss and determine the principle of compensation for mental damage in tourism contract, and discuss the main methods of determining compensation for mental damage in foreign countries and their advantages and disadvantages from the point of view of comparative law, combined with the situation of tourism cases in our country. The author puts forward the method of determining the amount of spiritual damage compensation for breach of contract in tourism practice in our country.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.6
本文编号：2489859
[Abstract]:Tourism activities play a more and more important role in people's lives, and tourism contract disputes are also increasing. Among many disputes, the moral damage in tourism contract is controversial. The reason is, first of all, in the performance of tourism contracts, tourists suffer from mental damage does exist, and the number of them is large, which has become an unavoidable practical problem. Secondly, the laws and regulations on spiritual damage compensation in tourism contract are not complete. Therefore, the author chooses this topic as the topic of graduation thesis, hoping to have a further understanding of the problem of compensation for spiritual damage in tourism contract, to seek the answer to this question, and to make a modest contribution to the theoretical research in this respect in our country. This paper is divided into three parts: the first part: the author explains the reasons for the legal blank of spiritual damage compensation in tourism contract in our country, and understands that the background of the problem is the basis and premise of studying and solving the problem. Then, the author analyzes the meaning of tourism contract and the particularity of tourism contract. Only by recognizing the compensation for spiritual damage in tourism contract can we show the fairness and justice of law, both in practice and in theory. The second part: in this part, the author analyzes that in the specific performance of tourism contract, breach of contract may infringe on the expected interests of tourists, or may infringe on the inherent interests of tourists, or both of them may be infringed upon. Because of the different legal interests of breach of contract, the author classifies the compensation for mental damage. Then it expounds how to determine the compensation for spiritual damage in breach of contract and the compensation for moral damage in tort, as well as the treatment under the concurrence of liability. The third part: in this part, we discuss and determine the principle of compensation for mental damage in tourism contract, and discuss the main methods of determining compensation for mental damage in foreign countries and their advantages and disadvantages from the point of view of comparative law, combined with the situation of tourism cases in our country. The author puts forward the method of determining the amount of spiritual damage compensation for breach of contract in tourism practice in our country.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.6
【参考文献】
相关期刊论文 前2条
1 俞宏雷;刍议旅游合同纠纷案件的审理[J];法律适用(国家法官学院学报);2001年03期
2 夏月星;旅游合同中的非财产损害赔偿责任——从“死神陪伴的旅行”终审判决谈起[J];安徽警官职业学院学报;2002年02期
，本文编号：2489859
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