Problems Of Private International Law Of Concurrent Liability In Tort And Contract

Concurrent liability in tort and contract is the legal phenomenon which arose from contract's independence of tort and has been consolidated with tort liability and contract liability widening its scope respectively. Thus it is the result of gradual perfection of law.The current trend in dealing with the concurrent liability in tort and contract not only lies in "competition",which means the one liabilities having priority over the other;but also in "combination",which means conformity of liabilities legally and judicially.As a pure domestic issue,no matter how concurrent liability is disposed with competition or combination of liabilities,it has far-reaching influence on private internation law.Employing historical analysis and comparative analysis and combining jurisprudence and legall practice from home and abroad,this dissertation will make a thorough analysis into the private international law issues arising from concurrent liability in tort and contract,on the basis of which some corresponding measures will be put forward.The paper will be arranged as follows:Chapter one:Introduction to concurrent liability in tort and contract. By analyzing the distinctions between tort liability and contract liability in theory and system,this chapter systematically expounds the origins, doctrines,settlement principles and historical evolvement in their concurrent liability,on the basis of which a trend will be seen that tort liability and contract liability are not only in competition but also in combination.Chapter two:The concurrent liability in tort and contract with foreign elements involved and charaterization.On the basis of the analysis of the argument between party's disposation of civil right and forum discretion and the one in identity of characterization between determination of jurisdiction and application of conflict rules,this chapter points out the paradox in charaterization and its causes under the concurrent liability in tort and contract.Hereby a conclusion will be drawn that a new orientation should be made towards objects of charaterization.In addition,this chapter expounds the challenge of the union liability law to conflict law and America's reaction.Chapter three:The concurrent liability in tort and contract with foreign elements involved and.On the basis of the comprehensive clarification of the rivalry and coordination between the concurrent liability and party's autonomy,this chapter makes a antrastive analysis into the different patterns of dealing with exemption,chioce of law,chioce of forum and arbitration clause of contract under the concurrent liability in tort and contract.Chapter four:The concurrent liability in tort and contract with foreign elements involved and choice of law.By analyzing the conflict between expected value and fair value in choice of law,this chapter first makes a comparison among various settlements of value conflict,and then brings forward a corresponding approach to the concurrent liability in tort and contract with foreign elements involved.What's more,this chapter also makes a thorough analysis into application of law under tortious claim is demurred in exemption clause of contract.Chapter five:The concurrent liability in tort and contract with foreign elements involved and international uniform law.This chapter focuses on the concurrent liability in tort and contract with foreign elements involved to international uniform law,further expounds the measures provided in international uniform law and their limitations,and then pictures the future that international uniform law will works well in dealing with the concurrent liability.Chapter six:The perfection of China's concurrent liability in tort and contract with foreign elements involved.After making a further analysis of the history and status quo about China's concurrent liability in tort and contract with foreign elements involved,this chapter points out the limitations and deficiencies in China's legislation and judicial practice. Hereupon some suggestions will be put forward.Conclusion:The key to the settlement of the concurrent liability in tort and contract with foreign elements involved lies in the separation of problems concerning purely domestic law and problems concerning private international law,and the combination of concurrent liability and substantial justice.