CAJ | 학술논문

旅游合同的非物质性和人身关联性,决定了确立旅游违约精神损害赔偿的必要性。在我国司法实践中,为实现个别化正义,不乏在旅游纠纷中予以创造性突破而承认违约精神损害赔偿的判例。这些案件的裁判结果虽符合旅游合同目的和公平正义原则,但却存在实质合理性与形式非法性的困境。需克服现有理论障碍,通过现有法律扩大解释承认旅游违约精神损害赔偿,明确其法律要件,依据可预见性规则和最低限度规则限定其适用范围。
여유합동적비물질성화인신관련성,결정료학립여유위약정신손해배상적필요성。재아국사법실천중,위실현개별화정의,불핍재여유규분중여이창조성돌파이승인위약정신손해배상적판례。저사안건적재판결과수부합여유합동목적화공평정의원칙,단각존재실질합이성여형식비법성적곤경。수극복현유이론장애,통과현유법률확대해석승인여유위약정신손해배상,명학기법률요건,의거가예견성규칙화최저한도규칙한정기괄용범위。
With the rapid development of tourism industry in China, a large number of disputes have arisen between tourists and travel agencies. Any social problems that evolve into legal issues would be submitted to the court; most tourism disputes have no exception. Based on dual civil liability legislative models in China, the compensation for mental damage of default is not clearly supported by current laws. When tourists suffered from the breach of travel agencies, the mental damage caused by breach can not be remedied through action for contract default damages. It＇s not only against justice,but also violating the basic purpose of tourism contracts. The main obligation of travel agencies in tourism contracts is to provide travel service, and the basic purpose of the travel contracts for tourists is to get spiritual pleasure and enjoyment. The necessity of compensation for mental injury in the sphere of tourism contracts is due to these contracts＇ immateriality and relevance to personal rights. In practice, there have been judgments in support of compensation for mental injury in tourism contractual disputes, with a view of achieving fairness and justice. However, these judgments are in contradict with substantive rationality and run the risk of being illegitimate in format. There is no legal obstacle to request compensation for mental injury in tourism tort suit, but the difficulty of obtaining legal remedies in tort suits is much higher than in tourism contractual suit. The supreme people＇s court has showed its attitude clearly that mental injury compensation claims shall not be supported in tourism contractual suit through the judicial interpretation of＂issues concerning the application of law in the trial of tourism disputes＂. Tourists would have the much higher risk of losing their rights to claim mental damage compensation in tourism contractual suit than in tourism tort suit. The need of tourists to remedy personality rights is much higher than property rights in tourism disputes. The compensation of mental injury compensation in tourism contractual suit can help highlight the protection of the personality of tourists. The compensation for mental damage in tourism contracts has occurred from completely rejection to conditional admission in many countries and regions such as the United States,Britain, Germany, and Austria. Therefore, it is necessary to overcome existing theoretical obstacles to establish a compensation system for mental injury in tourism contracts by clarifying legal requirements relevant to mental injury compensation and confining the scope of application on basis of the principle of predictability and the principle of minimum extent. The compensation system for mental injury in tourism contractual disputes could be only applied to the serious mental damages caused by breach of travel agencies, and minor mental damages are not compensable. The rule of predictability in contract law should be applied to the compensation system for mental injury in tourism contracts.Travel agencies are only liable for the serious mental damages of tourists on condition that the damages caused by breach are foreseeable when tourism contracts have been signed. The rule of predictability which is conducive to prevent excessive lawsuits and to balance the interests between tourists and travel agencies, limits the scope of mental injury in tourism contractual disputes.