Injuring Performance Research

Injuring performance is an extremely controversial problem; and scholars have different opinions especially on the legal consequence of injuring performance. The legislation of our country about injuring performance exists some defects. Through the comparative analysis method, the value-analysis method, and the positive analysis method, this article explores the origin of injuring performance, its fundamental theory and legal consequence. Then, some new opinions and legislative suggestion for improving the institution of injuring performance are given.This thesis mainly embodies the viewpoints as follows. (1) Injuring performance is one formation of non-performance of obligation in which the debtor fulfils the obligation inappropriately and the creditor suffers the loss beyond the benefit of performance. (2) The constitution essentials of injuring performance includes performing obligation already, performing obligation inappropriately, infringing the creditor's inherent interest, and the debtor without main content of exemption. (3) Inevitably, injuring performance leads to coincidence of civil liability. To settle the problem of civil liability of injuring performance, the traditional theories of coincidence of civil liability are defective, however, the theory of restrictive claim rights coincidence is comparatively reasonable. (4) To protect the victim's legal interest comprehensively, the remedy for breach of contract should be applied to compensation of moral damage resulted from injuring performance, but rational restriction is necessary.