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对违约行为造成的损害,传统的法律采取违约与侵权二元救济体系,其中的非财产性损害主要通过侵权之诉来请求赔偿。但是依据当事人的选择,往往不能同时适用而获得被侵害权利的完全赔偿,不利于保护受害人的权利。笔者对一些学者反对非财产性损害合同救济的理论提出若干质疑,认为借鉴西方国家对非财产性损害适用合同救济,并对其给予一定的限制,具有可操作性,能够公平合理地保护特殊合同的受害人一方。
The damage caused by breach of contract, the traditional law to take the dual system of breach of contract and infringement, of which non-property damage mainly through infringement claims to seek compensation. However, according to the choice of the parties, it is not always applicable at the same time to obtain full compensation for the infringed right, which is not conducive to the protection of the rights of the victim. The author put forward some doubts about some scholars' theory of non-property damage contract remedy. They think that drawing some reference from western countries on non-property damage contract remedies and giving them some restrictions, it is feasible and fair and reasonable to protect special contracts The victim's side.