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Research On The Coincidence On Liability For Breach Of Contract And Tort

Posted on:2008-07-03Degree:MasterType:Thesis
Country:ChinaCandidate:Y YuanFull Text:PDF
GTID:2166360215953178Subject:Civil and Commercial Law
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The concurrence of liability for breach of contract and liability of tort means some sort of unlawfui act characterized by both breach of contract and tort act, which lead to the legal correspondence of the liability for breach of contract and liability of tort, from the victim's point of view, the double characteristics of the actor make it possible for the victim to have different kinds of rights of claiming. This is called concurrence of rights of claiming. The concurrence of liabilities and concurrence of rights of claiming are two different aspects of a same question. In judicatory practice, there are a lot of states of the concurrence of liabilities.Therefore, it is necessary to fully protect the legal right of the parties through thr recognition of civil rights by thr sysrem of the concurrence of liabilities.The concurrence of liability for breach of contract and liability of tort are two kinds of civil liabilities coming into being since the time of ancient Roman. It is because of the complexity of civil relation and the multi–types of the illegal civil acts that the phenomenon of the concurrence of liabilities takes piace. The concurrence of liability for breach of contract and liability of tort is the first problem to be solved when the multi–types of acts are reckoned illegal in all civil laws throughout the world. Chinese Contract Law endows the victim the right to choose one of the roght of claiming. However, this way exists many shortcomings.This essay consists of four parts:The first part of the essay introduces a general idea of the coincidence of liability. Firstly, it states that the coincidence exists could exists in either the same law section or in different sections. Meanwhile, it also emphases some characteristics of the coincidence of the liabilities: a breach of the obligation will result in coincidence of the liabilities; an infringement must compose of two or more essence elements; etc. Thirdly, it compares the coincidence of liability with the cooperation, and the regulation coincidence with provisional conflict.The second part generalizes the definition and characteristics of the coincidence of liability and tort, it analyze the foundation of liability, the principle of liability attribution, the burden of proof, elements of liability and exclusion of liability, etc in turn. The essay also takes account into the character and reasons of the coincidence of liability and tort based on the comparison of the liability of breach of contract and tort. It suggests that the conflict between life logistic and regulation logistic are just of general origins, internal reasons of the civil law system. However, there is another critical reasons on the respect of liabilities coincidence, it is an awareness of the goal of a litigation. The goal of litigation is a legal question of controversy, and it is confirmed that different understanding will lead to an influence on appeal of the party and judgment made on the court.The third part illustrates the essence of the coincidence of liability and tort. At first, it introduces three influential theories of the coincidence, in a word, theory of provision coincidence, and coincidence of right of regulatory coincidence of right of claim and also further discusses the merit and demerit of these theories. In my opinion, minorities of the scholars agree with the theory of provision coincidence. However, I support the theory of coincidence of right of claim as professor Cui Jianyuan who stated that"since the we are not entitled to have the same right of appeal for taking liability of breach of the contract and the tort", thus the theory of regulatory coincidence of right of claim will be illegitimate. Summarizes the detailed expression of the coincidence of the liability and tort. In my opinion, grouping in categories will be the best way to classify the coincidence. I also take further account into the statement of professor Yu Yanman but not fully agreed with him and develop opinions like: the existence of the coincidence of liability of default and tort origins from the difference of life logistic and legislative logistic. Civil law differs property loss, personal damage, and spiritual damage, and also distinct direct damage and indirect damage, etc. on which provide with relevant regulations and legislations. This difference results in the conflict between the real life and the regulation. Thus the fact of tort will not necessarily lead to the coincidence of the liability and tort.Part four lists legislative choices of the coincidence of liability and tort. According to the precedents of different countries, there are three settlement of dealing with coincidence of the liability, those are forbidden coincidence, permitted coincidence and limited coincidence. It is suggested that base on the principle of justice and equity, the inflicter must compensate the corresponding damage of the victim. However, the legislation difference consequently lead to a different remedy and compensation means which does not reflect the equity of law and to some extent breach the rule of equity and justice.
Keywords/Search Tags:Coincidence
PDF Full Text Request
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