Study On The Rationality Of Fault As The Constitutive Element Of Breach Liablity Of Our Country

The essence of studying the rationality of fault as the constitutive element of breach liability of our country is studying the liability attributing principle of breach liability. Before our country's Contract Law issued, it is generally believed that Civil Law has adopted fault liability according to Article 106. Whereas Contract law adopted strict liability because legislators deleted the prescription:"except where the parties can prove himself not at fault" in Article 138 of the draft of contract law. The argument about liability attributing principle of breach liability did not stop because of the issue of Contract Law. There are still some scholars who insist that fault liability should be adopted. I hold the same view. Fault should be regarded as constitutive element of breach liability, which will be studied from the legislative, judicial practice and theoretical aspects.Chapter 1:the meaning of the concept of fault. Clearly defining of concept is the premise and basis of any legal study. This chapter introduces the history of fault becoming the constitutive element of breach liability as first, then analyses three different kinds of theory about fault exhaustively.Chapter2:the comparative study of fault as the constitutive element of breach liability in other country's legislations. Our country's liability attributing principle has developed on the basis of drawing lessons from other country's legislations. As a result, this chapter will research the reflection of fault in defaulted liability of France German and Common Law countries.Chapter3:the legislative and judicial practicing study of fault as the constitutive element of breach liability in our country. This chapter enumerates and analyses the specific prescription about liability attributing principle in our country's Civil Law and Contract Law at fist, then analyses whether the judge has considered the fault of debtor in specific cases statistically.Chapter4:the rationality of fault as the constitutive element of breach liability of our country. Because fault liability is prevalently used both from the legislative and judicial practicing view. This chapter will study the rationality of fault as the constitutive element of breach liability based on the above analysis.