问题 问答题

试论违约损害赔偿的特征。

答案

参考答案:违约损害赔偿具有以下特征:
(1)损害赔偿是因债务人不履行合同债务所产生的责任。虽然在合同不成立、无效或者被撤销的场合都有可能发生损害赔偿责任,但是违约损害赔偿与这些缔约之际所生的损害赔偿是根本不同的。违约损害赔偿以合法有效的合同关系的存在为前提,是债务人不履行其依合同所应当承担的义务的法律后果,而缔约过失损害赔偿责任则是缔约主体在合同关系尚未合法建立以前所承担的责任,由于此时合同关系还没有依法成立、合同债务尚未发生,因此该责任的适用不以合同债务的不履行为前提。
(2)损害赔偿责任原则上仅具有补偿性而不具有惩罚性。损害赔偿的主要目的在于弥补或者填补债权人因违约行为所遭受的损失,因此具有补偿性。损害赔偿的这一特性是符合等价交换的交易原则的,因为任何民事主体一旦造成他人财产损害,都必须以等量的财产予以补偿,损害与补偿之间具有等价性。不过,我国《合同法》也例外地承认损害赔偿的惩罚性。《合同法》第一百一十三条第二款所确立的损害赔偿属于惩罚性损害赔偿。所谓惩罚性损害赔偿,是指由法院判令加害人支付给受害人的超过其财产损害范围的一种金钱赔偿。惩罚性赔偿主要适用于侵权行为纠纷,其目的在于惩罚不法行为人,制止不法行为的发生,慰藉受害人心理上的痛苦。我国《合同法》的上述规定仅针对经营者销售中的欺诈行为。旨在保护消费者的权益。不过,需要注意的是,虽然惩罚性赔偿在侵权行为法中有很大的适用空间,但在《合同法》中却不宜过多地采用,因为这一方式不但不符合等价交换的原则,而且将会给合同当事人带来极大的不确定的风险,不符合交易的要求。
(3)损害赔偿具有一定程度的任意性。当事人在订约时可以在合同中预先约定一方当事人在违约时应向对方当事人支付一定数额的金钱,也可以约定损害赔偿额的计算方法。同时,当事人还可以在法律规定的范围内事先约定免责条款以限制或者免除未来可能要承担的包括损害赔偿责任在内的违约责任。这都使得损害赔偿责任具有一定程度的任意性。
(4)损害赔偿以赔偿当事人实际遭受的全部损失为原则。一方当事人违反合同以后,另一方当事人不仅可能会遭受现有财产的损失,而且也可能会遭受可得利益损失,对于这些损失,违约方当事人都应当赔偿。只有赔偿了守约方的全部损失,才能使守约方的利益处于犹如合同得到正常履行后的状况,由此才能有效地督促债务人履行合同债务。

阅读理解

阅读理解.

     If Shayne Ward didn't join the British singing talent show X-Factor in 2005, he might

still be working in the local clothing shop. However, life often favors those who have the

courage to try, and the nation voted him the winner.

     Recently, Ward came to China to promote his second album, Breathless, which was

released on January 10.

     "Shayne has got a magnetic (磁性的) voice,and his songs are rhythmic and soothing

(舒心的) to listen to, "said Feng Yu, a Senior 2 student from Beijing Xicheng Foreign

Language School, who came to support him.

     However, the 23-year-old Ward doesn't just have an extraordinary voice and

beautiful looks. He also has a passion for performing on stage and a determination to

go after his dream.

     Life has been difficult for the Manchester boy. He's the youngest of a large family

with three brothers and three sisters , and money was tight.

     To help his family, Ward left school as soon as he could. He worked in factories

making everything from chocolate to clothes to cardboard boxes. But he never forgot

his true love was music.

     At age 16, Ward joined a band called Destiny and spent his weekends singing karaoke.

The band auditioned (试镜) for the X-Factor series, but got nowhere. A year later.

Ward wanted to try alone.

     "I couldn't believe I kept getting through," he said. "I didn't want my family to be the

ones going away looking sad. "

     However,Ward doesn't want to be discredited (被误认为)as a talent show winner.

He has proved his worth with a No. I single and two best-selling albums. Instead of trying

to predict the future, Ward only wants to enjoy his life right now.

     "I just carry on doing what I'm doing.That's all, " he said firmly, "I don't want to look

too far ahead. "

1. How did Shayne Ward make a living before he joi ned the British singing talent

show X-Factor?__________.

A. He worked as a clothing shop assistant.

B. He worked in a band.

C. He sang karaoke in clubs.

D. He was a cardboard box salesman.

2. Which of the following facts does NOT contribute to Shayne Ward's popularity? __________.

A. He has an extraordinary voice.

B. He has beautiful looks.

C. He has great determination to realize his dream.

D. He was a member of a band.

3. What's the right order of the events related to Shayne Ward?______

a. He joined a band.

b. He left school.

c. He worked in factories.

d. He joined the British singing talent show X-Factor alone.

e. His band auditioned for the X-Factor series but failed.

A.b, a, c, d, e

B.a, d, b, c, e

C.a, b, d, e, c

D.b, c, a, e, d

4. What can we learn from Shayne Ward's success ?______

A. Practice makes perfect.

B. All's well that ends well.

C. Where there's a will, there's a way.

D. Actions speak louder than words.

单项选择题