By The "Bus 708, Dalian Cause Death" Caused By The Analysis Of Concurrence Of Tort And Contract

Competing for the tort and contract, our contract law the provisions of section 122 tend Concurrence of the free choice to say, this provision makes difficult to achieve a balanced distribution of responsibilities, and new laws enacted tort liability and no make provision for the issue of competing. So far, the legislation of which there is no reasonable provisions to meet the needs of practice which, to the practical operation of which caused no small trouble, an urgent need for legislation or judicial interpretation of the system. Based on the "Bus 708, Dalian, causing death case" analysis, for the relevant legal issues discussed and analyzed the deficiencies of the existing law, two legal systems from the mainland and the Anglo-American point of view of competing issues, and competing problem solving suggestions. The article contains five parts.Partâ… :Introduction, from real life, the existence of tort and contract starting that tort liability and breach of contract on the competing issues of significance.Partâ…¡:Simple on "Dalian bus 708 to cause death" to introduce the same case for accountability, the parties are divided for the court's decision, the qualitative case, the responsibility is always accompanied by the identification of cases handled the entire process. Meanwhile, Summary of cases there is a dispute among.Partâ…¢:Infringement occurs for the case of competing with the contract issues, civil law and common law from two perspectives were discussed. By comparing the two legal systems, and the attitude towards competing when the deal with the problem of competing methods and ideas to fully absorb the strengths of two legal systems to abandon unreasonable, for the handling of cases to provide new ideas, and then deal with competition for China Improvement of legislation together a useful thought.Partâ…£:Summary of the current lack of theory, the concept of uncertainty from the claims of competing claims caused by the confusion, the lack of competing claims, the parties lack of freedom of choice theory to explore fully the problems.Partâ…¤:tort liability can be set up for mental damages should not be supported, according to the pathological records of traffic accidents were identified in the book division of responsibility is proper in-depth analysis, put forward their own views. Lessons from the common law would be useful to them, competing for the tort and contract issues recommendations for improvement of legislation. Perfect in three main aspects of the existing theories:First,change to "competing claims" as the central act of thinking is both a violation of tort law and contract law obligations of the "competing obligations" thinking; Second, dilute the rules of tort liability and breach of contract for the distinction, giving judges discretion when competing full use of the relief of two rules to eliminate the unfairness caused by free choice; third is infringing on the civil law tradition, and the distinction between the contract, if we adopt the common law distinction between the two fuzzy approach will affect the system and logic. Approach taken by certain provisions of competing at the time infringement lawsuit complaint or breach of complaints, but the application of remedies should be taken into account, to restrict competing attitude.