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作为一种典型侵权性违约行为,加害给付不仅造成债权人的合同履行利益等相对权的损害,还伴随有债权人的其他财产甚至人身、精神利益等绝对权的损害,即产生所谓的违约责任与侵权责任的竞合,依据我国现行《合同法》第122条违约与侵权的责任竞合规则,两种请求权只能择一行使。但是在加害给付中产生精神损害时,这种选择机制对其的保护便出现空缺,难以使债权人获得完全赔偿,因而,在加害给付产生精神损害的应予以契约性救济。
As a typical act of infringement of contractual default, the injurion payment not only damages the relative rights of the creditor in the performance of the contract, but also damages the absolute rights of the creditor, even the personal, spiritual and other benefits, resulting in the so-called breach of contract and infringement In accordance with the competing rules of liability for breach of contract and infringement in Article 122 of the current “Contract Law” in our country, the two kinds of claims can only be exercised one by one. However, when there is spiritual damage in the injurious payment, the protection mechanism of the election mechanism will be vacant and it is difficult for the creditors to obtain full compensation. Therefore, the moral damage caused by the injury should be remedied in a contractual manner.