On The Determination Of The Scope Of Damages

Concurrence, according to Civil Law, refers to the phenomenon that one legal fact gives rise to two or more rights of claim which concur and conflict with one another. And the concurrence of tort liability and liability for breach is most controversial and practical among various kinds of concurrence. The cause of the concurrence of tort liability and liability for breach lies in the fact that there exist both similarities and differences in the nature of the two kinds of liabilities. They share similarities in that both are the liabilities of compensation for damage attributable to the intentional or negligent violation of required standard of conduct, and the breach of contract falls into the category of harming obligee's right, which is similar to tort in nature. The differences lie in whether there is contractual relationship between the malfeasant and victim, and whether absolute right or relative right is harmed. In addition, the nature of the violation of obligation differs. There are various theories concerning the concurrence of tort liability and liability for breach, which mainly include: the statute concurrence theory, the theory of concurrence of claims and the theory of concurrence of standardized claims. Each of these theories came into being with certain historical background, and therefore is effective in some degree, but none of them is able to solve the problem of concurrence. With the study of legists, more and more new theories appear. In practice, different countries, not having completely adopted the above-mentioned three theories, have different ways to deal with liability concurrence, which can be generalized in three basic ways, namely, forbidding concurrence, allowing concurrence and limiting concurrence. Each of them has its own advantages and disadvantages. In the process of resolving the concurrence of tort liability and liability for breach of contract, many questions deserve close study both in theory and practice. The assessment of damages has practical significance and particularly the question whether the assessment of non-pecuniary damage should be consistently included has given rise to many controversies. In civil liability, the binary classification of tort liability and liability for breach of contract is artificial since the very beginning. The application of law, however, serves the purpose of resolving problems in an appropriate way. Therefore, the application of law should not run against the tenet of law, which comprises not only concepts and logical deductions but evaluation of value and balance of the interest of parties involved. So, in light of the purpose of law and the interest of parties involved, the protection given to victim should not be limited by the artificial classification of law terms. This is the essence of the issue, which must be carried out in handling the concurrence of tort liability and liability for breach. The concurrence of liability is in essence the concurrence of claims, and they two form the two sides of the same coin. In concurrence, the study of the basis of claim has great theoretical significance. In light of this theory, one natural fact only produces one claim to the same subject of payment, but it may have two claim bases in the case of concurrence. The scope of damages, therefore, can not be determined in terms of claim fusion in tort liability and liability for breach. Instead, in the application of the basis of claim, emphasis should be given to the legal purpose behind regulations so as to solve the problem of the incongruity among different statutes, and the autonomy of parties should also be considered. The discussion of the basis of claim only partially answers the question of concurrence of tort liability and liability for breach. The establishment of liability fixation in modern civil liability, however, plays a fundamental role in determining the scope of damages. The basic function of civil liability is to balance the imbalanced interests. According to the view of compensatory full compensation, the loss of victims, no matter caused by tort or breach, should be compensated. One of the tenets of law is to keep social balance. Therefore, the loss of a person should be compensated and the interests of victims should be fully considered. On the other hand, law should not let it happen that transgressors bear the punitive damages two times as much as the actual loss. Instead, they should compensate the injured party for the actual loss. Based on the principle of liability fixation, the remedy for loss should be compensatory, covering the total loss of the victim's in the concurrence oftort liability and liability for breach of contract. The determination of scope of damages should take into consideration both damage and loss of interests, including expectation interest and creditor's personal or other property interests (inherent interests) It has been a hot topic recently whether spiritual damage should be included in breach liability. Like most scholars and experts, this author holds a positive view. It can be concluded that spiritual damages should be compensated, in light of comparative observations and the classification of non-property damages and the evaluation of relevant cases. This conclusion also serves as the theoretical basis for the argument that non-property damages should be covered in the determination of the scope of damages in concurrence. Therefore, this author argues—through the discussion of liability fixation in civil liability, the analysis of damage and interest loss in the scope of damages, the deduction of active tort and breach theories in the classification of concurrence, the introduction of the comparative assessment of damages of non-property damage in breach, and generalization of judicatory practices and legislative exploration as well as the classification of non-property damages in breach—that in the concurrence of tort liability and liability for breach, one party has two claim bases, but only one claim in one suit, and accordingly only one suit can be brought. In the suit, the scope of damages should cover the sum total of the damages possibly assessed individually in tort and breach suits, with the deduction of the overlapping part. The burden of proof and limitation of action should be determined individually based on the two claim bases, but applicable simultaneously. At the same time, consideration should be given to the legislative purpose and value judge behind law, and the claims of parties should be accordingly adjusted, so as to give maximal protection to the interest of the parties. In the application of above-mentioned principle, however, there might exist cases where victims'damage cannot be fully compensated. To avoid this situation, judges must carry out the right of interpretation endowed by law to guide parties'suit. For the cases that are already decided by the court, in accordance with the principle of "non bis in idem"the party should not bringanother suit with the same damage. Moreover, it is risky to resolve the law suit of concurrence on the basis of the article 122 in the Contract Law, for it is still immature in theory and might bring damage to the victim's rights. In addition, some specific provisions of law and special agreement between parties might be circumvented in the lawsuit of concurrence. Therefore, the application of this article in concurrence suits should be cautious.