Legislative Visualization Of Concurrence Between Liability For Breaching Contract And Tort In Chinese Contract Law

Concurrence between liability for breaching contract and tort is a controversial issue for long. This thesis, from perspectives of past and present, theory and practice, comparatively analyzes the existing doctrines and legislative precedents in the continental and common legal family, with theme of comprehensively protecting the victim. Legislative proposals on including concurrence liabilities in Chinese civil legal system are made on comparing the existing theories and doctrines, with practical and jurisprudential analysis on Article 122 in Chinese Contract Law,Preface, introduction on the origin of concurrence liabilities between breaching contract and tort, which penetrates into the rationality of Article 122 in Chinese Civil Law by a case from the Bulletin of the Final court.Chapter 1 differentiation on basic concepts are made to set out the base of legislative proposals. First to define "concurrence", introducing its features and category, pointing out that convergence is to be included. Secondly to make some statement on tort and tort liability, breaching contract and its liability. Finally the standpoint of the chapter is to lay down the foundation of legislative proposals, on the relation between the mentioned two pairs of concepts.Chapter 2, general introduction on theories on concurrence liabilities. Introduction is made on the existing doctrines and legislative precedents in the continental and common legal family, with focus on comprehensive protection of victim' interest and a few words on the conciseness and feasibility of the legal procedure.Chapter 3, practical and theoretical analysis on Article 122 in Chinese Contract Law. The chapter practically analyzes four category of cases, pointing out its defects, when confronted with cases of co-existence or crux between interests of the two liabilities. Thereafter the thesis furthers on the logic defects, unbalance between rights and obligations, conflict between procedural and substantial justice of the Article, analyzing its lack of comprehensive protection of victim's interest.Chapter 4, the application of imputation principles to concurrence liabilities. Proposals are made on enlarging the scope of victim's interests. Discussion on the feasibility of taking fault principle as imputation principle, with research on the revolution of imputation principles in breaching contract and tort. Hereafter the thesis compartmentalizes the liability scope into performing and ex-performing interest, suggesting the comprehensive application of two imputation principles into concurrence liability.Chapter 5, legislative visualization of concurrence liability into Chinese Contract Law. The chapter summarizes the preceding chapters, giving out the author's suggestions on visualizing it in Chinese Civil Law. First to enlarge the protection scope of victim's interest; secondly to assert to apply contractual procedure to such concurrence cases. Thirdly to set the liability of proving fault on the victim. Finally to give out the reasons for relative legislation.