On The Concurrence Of Default Claim And Tort Claim

As the product of well-developed right relief system, the concurrence between default claim and tort claim embodies the limitations of law classification. And with the development of society, the relationship between contract law and tort law is at the dynamic state. From the initial distinction on the surface to the mutual infiltration and fusion nowadays, the concurrence between default claim and tort claim springs up largely. This is a theoretical issue, while in practice it has high application. Whether in the continental law system countries or in countries of Anglo-American law system, its doctrines and judicial practice differs greatly, and no definitive conclusions are reached. Take full remedy of the victim's loss as purpose, this paper intends to analyze the advantages and disadvantages of three concurrence theories from the angles of history and reality, and theory and practice, at the same time, a detailed analysis on the Article 122 of our country's contract law will be given. Based on the theories above on, this thesis will present a legislative idea about the concurrence between default claim and tort claim.This paper can be divided into five chapters.Chapter One defines the connotation and extension of concurrence. Concepts such as concurrence of the right of claims, liability concurrence and norm concurrence are well defined and contrasted. At the same time, this chapter also gives a thorough description of the definition, causes of coming into being, and historical origin of the concurrence between default claim and tort claim.Chapter Two introduces the three theories and three different legisla -tive modes from continental law system to Anglo-American law system. The differences of these three legislative modes'protection to the victim's benefit are mainly talked about, and the conciseness of their procedure and the differences of their operability are also discussed here.Chapter Three introduces the dynamic development of contract and tort, and the changes of the interests that they each protect. This thesis thinks that the current contract law not only protect inherent interests also protect the interests of performing. With regard to the point that the spiritual hurt caused by default can only be compensated through tort lawsuit, this thesis discusses its disadvantage and puts forward the author's point that victims can seek default compensation on some exceptional situations. This chapter also introduces the protection of Anglo-American law system to pure economic loss, the future relationship of contract and tort, and their influences to concurrence.Chapter Four introduces the legislation of our country at present and practices in society about concurrence, and expounds the defects of the current legislation and justice. The present legislation is too general and lack of corresponding provisions, easy to produce ambiguity. For example, what's the meaning of the word "choice"? Does it mean to choose only one or two are optional? Through the Article 30's rules of the Supreme Judicial Court's Concerning the Explanation of Contract Law's some problems (I) , we can see that the two claims in Article 122 about Contract Law are absolutely independent, otherwise there is no possibility of contest on jurisdiction. The disadvantages of absolute independence of the two claims is that if we choose one, a victim's losses can not get comprehensive remedy, but if we choose two, unjust enrichment will appear. Considering this situation, the author of this thesis will offer new legislative suggestions.Chapter Five is the theory reconstruction and legislative proposals about the concurrence between default claim and tort claim. Through the above conclusion, this thesis puts forward the mutual influence doctrine, and also, based on this theory, a legislative proposal is given—two claims should be presented at the same time, for they are influential to each other. The purpose is to realize the coordination of the two, preventing unjust enrichment and the logic paradox. But if the parties still insist on a claim after being explained by the judge, his or her wills should be fully respected. What we need to pay attention to is that no matter what choices the party chooses, the concurrence between default claim and tort claim should be solved in one lawsuit.