On Damage Compensation For Obligation Fault

Since the relevant provisions of obligation default in German Obligation Law have been revised, the research on obligation default increases sharply in many countries and regions. With the deepening of globalization, PECL and a series of International Commercial Laws give a very great impact to the traditional civil law theories, and have an enormous potential to replace the traditional doctrines. China Civil Code is in the legislation stage. It is very important to update the researches and discussions of other countries and regions, in order to enact a Civil Code that is not only in accordance with legal theories and has a practical feasibility, but also has a meticulous logic and a rational structure. Any kind of obligation default could be converted into liability for damage compensation, so liability for damage compensation has a dominant position in the legal effects of obligation default. Therefore, the most important question is to resolve the problems of damage compensation in the research of obligation default.Both obligation default and damage compensation involve many concepts, theories and various kinds of discussions, so this thesis only discuss two matters, namely, the definition of damage and principles of determining the scope of damage compensation, and moreover, this thesis limit obligation default in the obligation by contract.The first part of this thesis elaborates the definition and classification of obligation default and damage compensation. And then it transfers to discuss damage compensation of obligation default. This discuss analyses the relation among damage compensation, specific performance and rescission of contract, and also introduces the concept of breach of duty. Imputation principle of damage compensation is the emphasis of this discuss, which includes a comparison of fault liability to strict liability, and a conclusion is drawn, that damage compensation of obligation default still must have imputation reasons as its conditions.After resolving a series of basic concepts, the theme of this thesis begins to be discussed, that is the classification of damage and the determination of scope of damage compensation. The second part of this thesis compares the differences and disadvantages of three kinds of theories of damage concept, namely, Difference Theory, Organization Theory, and Normative Damage Concept Theory. The reasonable doctrine of damage concept should be the combination of Organization Theory and Normative Damage Concept Theory. The classification of damage follows, and the classification and comparison are mainly in accordance with property damage and non-property damage, the damage and the loss of interests.The third part is the main part of this thesis. Firstly, comparative research on instance of legislation and theories are done, namely, Principle of Full and Complete Indemnity, Predictable Rule and Correspondence Theory of Causal Relationship. In the Predictable Rule section, the compensation of the loss of interests should be restricted to the predictable range when the contract is concluded, which linked to the loss of interests in the classification of damage. Secondly, other rules of determining scope of damage compensation are discussed, mainly including, Loss Balance Rule, Fault Balance Rule, Mitigation Rule, Prearranged Damages and so on. In each aforesaid part, the relevant provisions of China civil laws are compared, and the disadvantages of the provisions of damage compensation of obligation default are pointed out.