20世纪初认为违约责任与侵权责任之间有一条巨大的鸿沟难以跨越，甚至在许多学者心中这个“圣训”似乎不容有丝毫的“亵渎”。但是随着社会生活关系的复杂化以及合同法理论的扩张，使得违约责任与侵权责任二元化之间界限也越来越模糊。霍姆斯在《普通法》中写道：“法律的生命在于经验，而不在于逻辑。”这一金玉良言启示我们，非财产损害赔偿问题并不先验、永恒地属于侵权法，我们应该用去教条化的视角来审视非财产损害赔偿在违约责任中是否具有正当性。%In the early 20th century, it was considered that there was an insurmountable huge gap between liability for breach of contract and tort liability, which was the “hadith” in the minds of many scholars who thought it inviolable. But because of the complication of social life and theoretical expansion of the contract law, the boundaries between the two have been increasingly blurred. In common law, Holmes wrote: “The law lies in experience, rather than in logic”. We can learn something from these noble words, i.e. being not a priori, the issue of compensation for non-pecuniaryloss does not eternally belong to tort law, and we should adopt a kind ofnon-dogmatic perspective to examine the legitimacy of compensation for non-pecuniaryloss in breach of contract.
展开▼
