Research On The Concurrence Of Tort Liability And Responsibility Of Breach Of Contract

The concurrence of liability is a law system,not an objective phenomenon. Theconcurrence of liability is beginning from the coincidence and the conflict of law.Inessence,the concurrence of liability is a law institution to resolve the conflict of thecoincident law.The concurrence of tort liability and responsibility of breach ofcontract is the central content on the field of the concurrence of liability.Today thereare three typical theories:the doctrine of legal concurrence,the doctrine of claimconcurrence,and the doctrine of law-basis concurrence.But these three doctrines allhave some defects:the Contract Law and the Tort Law of PRC don’t exsist the naturalstatus,so the doctrine of legeal concurrence is not suitable;the doctrine ofclaim-concurrence’s premise is two rights are independent each other,but can’t ignorethe special law purpose;now more and more persons agree with the doctrine oflaw-basis concurrence,but this doctrine’s shortages are very clear:firstly,thetransformed right-system violate the spirit of civil law system;secondly,it is difficultfor judges to adjudge the case;thirdly,which is the real law-purpose is not very clear.Above-mentioned theories take us deeper thinking and studying.The article122of Contract Law of PRC establishes the concurrence of liability for the firsttime,admitting the coincidence of two rights and giving litigants two or more rights tochoose.However,defects are very clear:firstly violate the special purpose of law;secondly engender the verbose litigation.In order to cover the shortages of current law,when we are encountering theconcurrence of liability,we should firstly determine whether special article exists ornot.If both articles are special, the real concurrence has occurred,taking the doctrineof claim concurrence.If only one of the articles has special meaning,this special articlewill exclude another article.This conceive not only considers the special lawintention,but also respects and keeps the completeness of the civil-law’s rightsystem.Besides,the concurrence system of liability should also attach some supportingmeasures as follows:first of all,leading the system of compensation for mentaldamages into the responsibility of breach of contract to cover the shortage of thecompensation in current contract law;secondly,adding the preparatory consolidationof actions to avoid verbose litigation.