Analysis Of The Coincidence Of Liability Between Tort And Breach Of Contract

The coincidence of the liabilities occurs often in judicial practices. Combining a great many of specific cases, this paper mainly expounds the connotation and constitutive elements of the liability coincidence and how to deal with this kind of cases taking liability coincidence theories as guide. Because the coincidence of the liability for breach of contract and the liability for tort is the most common in judicial practices, this paper's expounding and the cases illustrated mainly based on this kind of coincidence. Structurally, paper can be divided into seven problems: The first problem is the connotation of liability coincidence. Liability coincidence agrees with the right of claim in the aspect of'their connotations, and they are two sides of one problem. First, the paper expounds the connotation and classification of the broad sense liability coincidence. On the broad sense, the liability coincidence means that the obligee as the qualifications to propose more than one claim rights to one or more than one obligors and demand them to undertake one or more than more civil liability. Specifically, the liability coincidence includes the combination of liability, "two as one" liability coincidence, "one as two" liability coincidence, not real joint debt and narrow sense civil liability coincidence. The narrow sense civil liability coincidence means that when a legal fact appears, a civil liability that conforms to more than two constitutive elements simultaneously occurs between the two parties concerned but the obligor only need to undertake one liability. The constitutive elements are: it must be a legal fact; the liability caused by the legal fact must conform to more than two liabilities' constitutive elements; the subject of the right and the subject of the duty must in the same legal relations; the obligor party only undertake one liability; the two liabilities can only be adjusted by the same department law. From the above expounding, the author clarifies the borderline some related concepts, such as, narrow sense civil liability coincidence, more than one liabilities, liability combination, not real joint debt, laws and regulations coincidence, etc. The second problem is the reason of the generating of liability coincidence. The reason of the generating of liability coincidence can be divided into abstract reason and concrete reason. The abstract reason is that the contract law and the tort law are independent from each other but coincide in some part and the division of the two is not absolute. When an act conforms to both the constitutive elements of contract liability and the constitutive elements of tort liability, the civil liability coincidence occurs. The concrete reason can be divided into four types: the first type is the contract concerned parties' contract breaking behavior, violating the compulsory duty prescribed by the law; the second type includes tort contract breaking and contract breaking tort; the third type is that when the illegal act produces liability for tort, if there is contract relation between the tort subject and the tort object before the illegal act happens, it is also a kind of liability for breach of contract ; the fourth type is that although an illegal act only conforms to the constitutive elements of one type of liability, from the aspect of protecting the interests of the victim, regard this kind of liability as liability for tort or liability for breach of contract.The third problem is the differences between liability for tort and liability for breach of contract. Although there are some overlaps between the liability for tort and liability for breach of contract, there are important differences in the aspects of constitutive elements, holding condition, content of the liability, evidence providing liability, protection standard, compensation range, liability undertaking form, liability to the third party's behavior, period of limitation, lawsuit jurisdiction, applicable law of the procedure involving foreign elements, duty undertaking subject, application elimination, etc.. For. the above reasons, the choosing of different lawsuit reason would have great influence on the protection of the concerned parties' interests. The fourth problem is about three relatively influential theories of liability coincidence: legal clauses coincidence theory, right of claim coincidence theory, right of claim regulations coincidence theory. Although these three theories all have their own claims, they all develop around two problems: the obligee has single or multi right of claim; the relations between contract breaching right of claim and tort right of claim. The fifth problem is about our country's scholars' and the laws' attitudes towards liability coincidence. There are the expounding of Taiwan scholars Shi shangkuan, Wang zejian and mainland scholars Yang lixin, Wang liming. Although the scholars have different opinions about the liability coincidence, there is one common view that: the obligee can only perform one right of claim, and don't enjoy two or more than two rights of claim. The main disputation is that: the right of claim is a single right of claim or a right of claim that has influences with each other or a right of claim that set on the foundation of two legal relations. Our country' laws and judicial policies experience the process from not acknowledging liability coincidence in the past to acknowledging limited liability coincidence until facing this phenomenon squarely at present. The most typical regulation is the clause 122 in the contract law. This clause mainly prescribes contract breaching tort and prescribes that the obligee can only propose one lawsuit claim either according to the contract law or the tort law and can not propose right of claim on the basis of the two kinds of rights of claim. The sixth problem is about the basic principle for dealing liability coincidence in judicial practices. According to the prescription of our country's law and civil policies, combing specialists' and scholars' expounding and China's current judicial practices, the author proposes two guiding principles for solving the problem of liability coincidence. Those are: first, permit the obligee chooses the types of the right of claim; second, permit the parities concerned make agreement on the type of the liability that should be undertook by the obligor and the condition of no responsibility before or after the claim, and obey the laws' prescription on the type of the civil liability that the obligor in particular civil relation should undertake. The seventh problem is combining the above theoretical analysis to the liability coincidence to expound specifically how to deal with the liability coincidence caused by travel contract, product liability and the operator violating safety guarantee duty. Those three types coincidence is the most common, the most typical in judicial practices, so dealing well those three types coincidence can guide the treatment of other type coincidence. The liability coincidence in travel contract includes three aspects: first, the travel projects provided by the travel agency do not conform to the promises a lot. The services provided can not realize the promises prescribed in the travel contract, making the object that the tourists making the contract can not be realized. This kind of act not only breaches the contract, also damages the spiritual interests of the tourists that he should enjoy according to the travel contract. Obviously, because of the limitation of our country's law, according to the tort lawsuit, this kind of pure spiritual damage cannot be protected. Now, the law and directive legal precedents in foreign countries have acknowledged the contractual relief of the pure spiritual damage, especially, the contracts like travel contract that takes body and spiritual entertainment as main objects; secondly, the provided board and lodging is bad or the travel vehicle have accidents. Not only the object of traveling cannot be realized, it also damages the tourists' life right and health right. In this case, the tourists have the right to decide which right of claim should be performed according to their own interests; thirdly, the liability coincidence of accompanying duty of the breaching activities, such as announcing, assisting, protecting, etc. The liability coincidence in product liability means that the vendee's body and property are damaged because of the defect of the product. Because this kind of act is the breaching of the seller's explicit and implicit guarantee duty, the acts not only damage the vendee's absolute rights , such as body right, property right, etc., but also breaching the agreed or promised duties in buying and selling contract. According to the contract breaching lawsuit, the third party's loss, besides the vendee's inherent interests, spiritual damage and the buying and selling contract, cannot be protected; also, according to the tort lawsuit, the loss of the defected product and the loss of expected interests...