A Comparative Study On Principles Of Contract Breaking Attribution

The principle of contract breaking attribution means a doctrine or basic criteria which should be followed in judgment of liability attribution resulting from actions of breach of contract. As different principle of liability attribution embodies different value judgment and determines the formation of corresponding constitutive requirement of contractual liability, the attribution principal has a decisive effect to the system of contractual liability. The legislative choice of principles of contract breaking attribution has been the focus of discussion in Chinese contract law academia over last decade. The discussers'arguments might be classified into three categories: first, asserting that the strict liability principle under common law shall be the best choice;second, asserting that the fault liability principle under civil law shall be the best choice;third, considering that the attribution principles of the two law systems are the same in substance. This thesis agrees to the third viewpoint and try to thoroughly demonstrate it.The research structure and measure of this thesis is :ChapterⅠgenerally introduces principles of contract breaking attribution. Precise concepts are the basis and preconditions of any science. The purpose of this chapter is to clearly define the concepts of principles of contract breaking attribution, attribution reasons, fault liability principle, presumption of fault, strict liability principle, non-fault liability principle etc, and to make use of these concepts as fulcrums and tools of thought to establish basis for system of this thesis. Besides, this chapter will make essential explanation of relationships between key concepts.ChapterⅡanalyses specific legislative examples. There are two major attribution principles——fault liability principle and strict liability principle. Fault liability principle might appears as direct fault liability principle and presumed-fault liability principle. And presumed-fault liability principle might appear as common presumed-fault liability and special presumed-fault liability. This chapter selects principles of contract breaking attribution under German civil law, French civil law and Anglo-American contract law as typical present of common presumed-fault liability, special presumed-fault liability and strict liability to make detailed analysis for revealing the features of fault liability and strict liability in legislative practice.ChapterⅢcomparatively analyses attribution principles of two laws system. Through horizontal comparison of each country's central attribution principle , the attribution reasons and applying scope , this chapter tries to demonstrate that the attribution principles of the two law systems are much the same in substance.ChapterⅣanalyses principles of contract breaking attribution under Chinese contract law. It is hold that Chinese contract law also provides three attribution principles: strict liability, fault liability and absolute liability, and the strict liability principle is the major principle. This chapter also examines the situation of principle of liability attribution under the Chinese contract law and uses the conclusion of the chapterⅢto make self-question of its advantages and weaknesses.