How to determine compensation for moral damages in travel contract disputes

A lawsuit over a travel contract cannot be awarded for moral damages. Because Brother Jing pointed out that damages are a kind of right based on the tortious act of the actor, and only tortious acts can claim moral damages, so it is impossible to claim moral damages for losses caused by ordinary breach of contract.

[Legal basis].

Article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Determination of Liability for Moral Damages in Civil Torts.

Where natural persons or their close relatives file a lawsuit in the people's court requesting compensation for moral damages due to infringement of their personal rights and interests or specific objects of personal significance, the people's court shall accept it in accordance with law.

Article 2. Where a ward is illegally removed from guardianship, causing serious harm to the parent-child relationship or the kinship between close relatives, and the guardian files a lawsuit with the people's court requesting compensation for mental harms, the people's court shall accept it in accordance with law.

Article 3. Where the deceased's name, likeness, reputation, honor, privacy, body, bones, and so forth are infringed upon, and their close relatives file a lawsuit in the people's court requesting compensation for mental damages, the people's court shall support it in accordance with law.

Article 4. Where legal persons or unincorporated organizations file a lawsuit with the people's court requesting compensation for moral damages on the grounds that their rights to reputation, honor, or name have been infringed, the people's courts will not support it.

Legal analysis: Moral damages are not applicable to the damages caused by breach of contract, and moral damages cannot be included in the scope of liability for breach of contract. Where a tourist claims compensation for moral damages in a lawsuit under a travel contract, the people's court shall not support it. However, moral damages can be claimed through a tort lawsuit.

Legal basis: Article 1183 of the Civil Code of the People's Republic of China Where the personal rights and interests of a natural person are infringed upon and serious mental harm is caused, the infringed party has the right to request compensation for damages.

Where serious mental harm is caused by intentional or non-ignition gross negligence infringing on a specific object of personal significance by a natural person, the infringed party has the right to request compensation for moral damages.

In general, moral damages cannot be obtained in the lawsuit of an old travel lease contract. A lawsuit for a travel contract is generally a lawsuit for breach of contract, but if there is a tort such as damage to personal rights and interests or a specific object with personal significance, you can obtain compensation for moral damages.

[Legal basis].

Article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Determination of Liability for Moral Damages in Civil Torts.

Where natural persons or their close relatives file a lawsuit with the People's Court for compensation for moral damages due to infringement of their personal rights and interests or specific objects of personal significance, the people's court shall accept it in accordance with law.

Article 2. Where a ward is unlawfully removed from guardianship, causing serious harm to the parent-child relationship or the kinship between close relatives, and the guardian files a lawsuit with the people's court requesting compensation for mental damages, the people's court shall accept it in accordance with law.

Article 3. Where the deceased's name, likeness, reputation, honor, privacy, body, bones, and so forth are violated, and their close relatives file a lawsuit in the people's court requesting compensation for moral damages, the people's court shall support it in accordance with law.

1. There is no moral damage to the liquidated damages. Travel agencies do not provide services in accordance with the contract, extend the shopping time without authorization, shorten the tour time, increase or decrease the service items, etc., are all violations of the contract, and the travel agency must compensate for the losses suffered by the tourist in accordance with the agreement or the tourist's reputation, but it does not involve compensation for moral damage. Since the contract law pays attention to the compensatory principle of compensation, as long as the travel agency breaches the contract, in addition to dealing with material compensation, it should also compensate for the loss of tourists' spiritual enjoyment.

Therefore, it is natural for tourists to demand compensation for moral damages from travel agencies, and it seems reasonable for tourists to demand compensation. 2. Compensation for tort liability includes moral damages. In judicial practice, the vast majority of tort liability does not involve moral damages, because according to the law, the main ways to bear tort liability are:

cease the infringement; removal of obstacles; eliminate hazards; return of property; Hark back to; compensation for damages; Apology; Methods such as eliminating the impact and restoring reputation can be used alone or in combination. Of course, on a case-by-case basis, whether and how much compensation for moral damages the tourist can receive depends mainly on the free will of the presiding judge. For example, if another person's vehicle is accidentally damaged, the infringer only needs to repair the vehicle, and no compensation for moral damages is involved.

3. Compensation for moral damage for serious personal injury. According to judicial practice, if a travel agency causes serious personal injury to a tourist, and is hospitalized for a long time, or causes death, the travel agency's behavior not only causes personal injury to the tourist, but also causes serious mental damage to the tourist and his or her family, and the tourist or his family will generally be supported by the court if he or her family claims compensation for moral damages.

[Legal basis].

Article 17 of the Full Text of the Judicial Interpretation on Compensation for Personal Injuries The person obligated to compensate the victim for personal injury, all expenses incurred due to medical treatment, as well as the loss of income due to lost work, including medical expenses, lost work expenses, nursing expenses, transportation expenses, accommodation expenses, hospital meal subsidies, and necessary nutrition expenses. If the victim is disabled due to injury, the compensation obligor shall also compensate for the necessary expenses incurred by the victim due to the increase in living needs and the loss of income caused by the loss of the ability to work, including disability compensation, disability assistive device expenses, and living expenses for dependents, as well as the necessary expenses, nursing expenses, and follow-up expenses actually incurred due to nursing care and continuation. Where the victim dies, the compensation obligor shall, in addition to compensating the relevant expenses provided for in the first paragraph of this article on the basis of the circumstances of the rescue, also compensate for the funeral expenses, the living expenses of the dependents, the death compensation expenses, and other reasonable expenses such as transportation expenses, lodging expenses, and lost work expenses incurred by the victim's relatives in handling funeral matters.

In practice, the vast majority of tort liabilities do not involve compensation for moral damages, and according to the law, the main ways to bear the tort liability of Yanzhi are: cessation of infringement; removal of obstacles; eliminate hazards; Hark back to; compensation for damages; Apology; Eliminate the impact, restore the reputation, etc.

Article 71 of the Tourism Law of the People's Republic of China.

If the breach of contract is caused by the reasons of the local receiving agency or the performance assistant, the group company shall be liable; After the group company assumes responsibility, it can recover compensation from the local receiving agency and the performance assistant. If the tourist's personal injury or property loss is caused by the reasons of the local receiving agency and the performance assistant, the tourist may request the local receiving agency and the performance assistant to bear the liability for compensation, and may also require the tour operator to bear the liability for compensation; After the group company assumes responsibility, it can recover compensation from the local receiving agency and the performance assistant. However, if the tourist's personal injury or property loss is caused by the public transport operator, the public transport operator shall bear the liability for compensation in accordance with the law, and the travel agency Zheng Min shall assist the tourist to claim compensation from the public transport operator.

Moral damages are generally not awarded in a travel contract lawsuit. Because moral damages arise from the elimination of hunger based on tortious acts, the subject matter of a travel contract lawsuit is generally a breach of contract. Therefore, a lawsuit for a travel contract cannot claim compensation for moral damages.

1. Can a company claim for moral damages if its personality rights are infringed?

If a company's personality rights are infringed, it is not possible to claim compensation for moral damages.

Because moral damages are the compensation that can be obtained when the personal rights of a natural person are damaged, and the company is only given its personality by the law, it is not a person in the real sense. Therefore, it does not have the subject standing to obtain compensation for moral damages.

Even if the company makes a claim for moral damages, it will not be supported by the courts.

2. How to sue for medical malpractice.

If a lawsuit is filed for medical malpractice, it is generally handled in accordance with the procedures of civil litigation. Specifically, it is also a lawsuit and lawsuit, but it should be noted that a medical appraisal is necessary, and a valid medical appraisal must be obtained before a lawsuit can be filed, and the patient can choose to file a lawsuit for civil compensation for medical tort or a lawsuit for a dispute over a medical technical service contract. Therefore, the handling of medical malpractice lawsuits is also handled in accordance with the above provisions.

3. Administrative penalties for travel agencies not signing contracts.

If the tour has not yet departed, get in touch with the tour operator and ask to sign a tour contract. If the travel agency does not agree to sign the travel contract: you have 2 options:

Choose other travel agencies to arrange travel plans, insist on signing up for a group at this travel agency, and if the negotiation fails, you can call the local tourism bureau** to report. If the tour has already departed, you can also ask the travel agency to sign a travel contract if you are worried about unforeseen circumstances during the trip. If the travel agency refuses to sign, it should keep the proof of travel payment and report it to the local tourism bureau.

If the tour has been completed, if you are not satisfied and the compensation cannot be reached through negotiation with the travel agency, you can go to the local tourism bureau to complain with all the documents you have retained.

Article 1183 of the Civil Code of the People's Republic of China.

Where the infringement of a natural person's personal rights and interests causes serious mental harm, the infringed party has the right to request compensation for moral damages.

Where serious mental harm is caused by intentional or gross negligence infringement of a natural person's specific object of personal significance, the infringed party has the right to request compensation for moral damages.

Article 996.

Where a party's breach of contract harms the other party's personality rights and causes serious mental harm, and the injured party chooses to request that it bear liability for breach of contract, it does not affect the injured party's request for compensation for moral damages.