Reflections On Injuring Performance

Injuring performance, an extension of contract law, is a breach of contract which impairs both the perfectibility interest and the performance interest of the creditor. In traditional civil law, the two kinds of interests are protected respectively by tort law and contract law. In the 20th century, in order to strengthen the protection of creditor, perfectibility interest is moderately fit into contract law, leading to the concurrence of civil liabilities, wherein lies the core feature of injuring performance.Adopting comparative research method, as well as historical and classifying ones, this thesis begins with an introduction to overseas research, and then focuses on China's recent development in such key issues of injuring performance as the definition, component, remedy, compensation for psychological loss and codification. It aims at presenting a personal view on the perfection of the systematic study of breaching contract and the better protection of creditor.There are three chapters in this thesis, other than the introduction and conclusion.Chapter One is a comparative study of German Positive Vertragsverletzung (PVV, also: Positive Forderungsverletzung, PFV), from which originates China's injuring performance. It introduces the birth and development of German PVV and analyzes the debate about its definition and component. Also included in this chapter are the classification by different scholars, and legal foundation and effect of this system.Chapter Two focuses on the injuring performance in mainland China. Starting from the definition and nature of injuring performance, this chapter clearly locates its position in contract breaching in China. It expounds the component of injuring performance to provide precise criteria for judgement and offers a classification of injuring performance for better perspectives. It then argues that the concurrence of liability is not sufficient for remedy and proposes the application of convening liability. It also attempts to use charts to avoid overlapping of remedy.Chapter Three further gives some reasonable proposals based on the examination of current Chinese legal system, mainly about the prospect of injuring performance. Such as the protection of the third party not in contract, the compensation for psychological loss, and the codification of injuring performance.