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Injuring Performance Research

Posted on:2008-07-14Degree:MasterType:Thesis
Country:ChinaCandidate:Q YangFull Text:PDF
GTID:2166360215463261Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Injuring performance is a breach of contract which damages not only performance interest, but also perfectibility interest. In traditional civil law, the two kinds of interest are protected respectively by contract law and tort law. In the 20th century, in order to strengthen the creditor, contract law also protects perfectibility interest. The protection of perfectibility interest is considered to be the basic function of injuring performance. The theory of injuring performance increases the possibility of the occurrence of the theory of liabilities' concurrence and also promotes its development. The injuring performance has been researched a lot in German civil law and Taiwan district civil law, and both law has its corresponding regulations. On the contrary, our law hasn't regulated it clearly. Based on comparative studies, and combined with the current legislation situation in our law, the author put forward her ideas on the establishment of the system of injuring performance in china.The paper is divided into three chapters.Chapter one: putting forward and development of injury performance theory. Injury performance theory derives from Germany, thus firstly, the chapter introduces the theory of positive infringements upon creditor's rights. Then, the author explained Taiwan District's incomplete fulfillment system. After comparative study, the author make clear that besides the purpose of filling the law hole, the other important function of the injuring performance is, the perfectibility interest which in the past should be protected by tort law, now also can be protected by contract law. The obligation system of contract law has been expanded. The injuring performance is not equivalent to the theory of positive infringements upon creditor's rights or the incomplete fulfillment, but is the main part.Chapter two: The establishment of china's system of injuring performance. Firstly, after analyzing the Chinese classification cf breach of contract, the author indicates that the problem of law hole brought by the two-kind contract breach division does not exist in our law. Then through searching for the reason why injuring performance exists and analyzing its significant function, the author points out that it is important to establish this system in our law. Lastly, based on the outcome of studies at home and abroad, the author put forward her opinion on the definition, the composing elements and the classification of injuring performance.Chapter three: Legal consequence of injuring performance. Firstly, the author indicates that according to the nature of injuring performance, it inevitably leads to liabilities' concurrence. Then, through explaining the definition of the liabilities' concurrence and introducing and commenting the three main theories, the author put out that: (pliabilities' concurrence only occurs on the perfectibility interest part, which is protected both by contract law and tort law.? the theory of mutual-effect claim concurrence should be adopted, and it is the function of the injuring performance system that determine the way of the mutual effect between the claim of breach of contract and the claim of tort. Lastly, based on the principle of comprehensive compensation, which indicates that both the damage of performance interest and perfectibility interest should be compensated, the author points out, as to the relief of injuring performance relief, both the liabilities' concurrence and the liabilities' combination should be adopted.
Keywords/Search Tags:injuring performance, liabilities' concurrence, the theory of mutual-effect claim concurrence, liabilities' combination
PDF Full Text Request
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