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A Study On The Issue Of The Tort Liability And Default Liability Concurrence Problems And Processing Method Research

Posted on:2012-07-14Degree:MasterType:Thesis
Country:ChinaCandidate:W X ZhangFull Text:PDF
GTID:2166330335988292Subject:Law
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The concurrence of civil liabilities has always been a headache to the worldwide legislation and judicial practices. Theoretically, there exist different doctrines about the concurrence of tort liability and contract liability, which is a common legal phenomenon in judicial practices. Because of different theories and solution patterns in worldwide judicial practices, the solutions to the concurrence of tort liability and liabilities for breach of contract are partial and inflexible. Therefore, the theoretical focus of liability concurrence lies in how to understand the relationship between certain legal facts and corresponding laws and the relationship between different rights of claims, which this paper aims to study and discuss.As the legal consequence arising from violations of civil obligations or other parties'civil rights, civil liability includes different aspects, depending on under which specific situation the violations happen. The phenemenon of concurrence happens when the same conduct which conforms to both the constitute elements of tort liability and liabilities for breach of contract is carried out between the same parties and the rights of claim are used for the same delivery. There are evident differences between the two kinds of liability on doctrine of liability fixation and onus probandi, etc., which causes various reasons of liability concurrence. However, these reasons have one thing in common, i.e. there is only one conduct that causes liability concurrence, thus the victim is given multiple rights of claim. In this sense, liability concurrence is also called concurrence of rights of claim. The direct reason for concurrence of tort liability and liabilities for breach of contract is that the two liability systems are both contradicting and overlapping. Thus it is also known as legal norm concurrence. The fundamental reason lies in the complexity, diversity and triviality of relationships between people in social life, which make a behavior involve a number of legal relations and the same illegal act violate various rights, resulting in a variety of legal liabilities. Laws should be based on the specific circumstances under which tort liability and liabilities for breach of contract happen so as to take the corresponding solutions. This not only has important practical significance in preventing the deficiency of using only one standard, but also helps to overcome the rigidity of the law.Liability concurrence is one type of the legal concurrence. It can happen within the same departmental laws, such as the concurrence of tort liability and liabilities for breach of contract, and can also happen among different departmental laws, such as the concurrence of tort liability, criminal responsibility and administrative responsibility. This article only discusses about the issue of the concurrence of liabilities for tort and breach of contract in civil law. This paper is divided into four chapters. The first chapter defines between the basic concepts of tort liability and liabilities for breach of contract so as to analyze their differences and connections. The second chapter illuminates the history and basic conception of concurrence. The third chapter analyzes the shortcomings and deficiencies of different concurrence theories and models in the judicial practice of various law systems through comparison. The fourth chapter elaborates on the legislative and judicial situation of concurrence in China, and after detailed analysis, discusses about the issue of the parties exercising their rights as well as solutions to problems occurred in the concurrence of tort liability and liabilities for breach of contract. Strive to better deal with the issues of Concurrence of Liabilities for Tort and Breach of Contract.
Keywords/Search Tags:Phenomenon of Concurrence, Tort Liability, Liabilities for Breach of Contract, Concurrence Solutions
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