Research On The Concurrence Of Default Liability And Tortious Liability

What this thesis pay attention to is the problem of the concurrence between default liability and tortious liability, it is one of the civil liability concurrence and a phenomenon that frequently occurs in judicial practice of the court. To this problem, foreign countries have studied in-depth, and variety theories appeared successively, there is interrelated provision of law in Contract Law of China too. But those theories and provisions have so many blemishes and shortage, actually speaking, they haven't solved the problem, so more studies needed. In this thesis, the author makes explanations and analysis of the problem by four parts.The first part deals with the concept, characteristics, reasons, and the attitudes of foreign countries to this issue, and the brief introduction of the typical theories. The law regulated social relations by abstract provisions at different angles, as a result, there is such phenomena that one fact is in accordance with the requisites of several constitutive elements of norm of law; this is why the concurrence of civil liability could happen. So concurrence between default liability and tortious liability means that there is a single illegality which the inflictor put in practice, but the default liability and tortious liability appear at the same time, those two liabilities have the same and different contents, they are independent and permeate mutually. It has the characteristics as follows: firstly, there must be one illegality; secondly, in accordance with the requisites of the constitutive elements of the default liability and tortious liability; thirdly, it must be the same civil subject; fourthly, there must have the same given contents. The direct reason that the concurrence between default liability and tortious liability could happen is the division of the default liability and tortious liability, but the root reason is the division of the contract law and tort law. All country's attitudes to the issue are different, for example, concurrence liability forbidden, such as France; competitive liability allowed, such as Germany; concurrent liability restricted, such as English; the attitude of China is liability alternative. There are three typical theories in law circles, such as concurrent legal clause, concurrent claims (include free concurrence of claims and interactional claims), and concurrence of claim norm of law.The second part analyses the shortage of those theories that related to the concurrence between default liability and tortious liability, those blemishes are fully exposed, it is predicated that those theory couldn't solve the problem. Legal clause concurrent considered that there are different norm of law which default action and tort act offend, the default liability be the same with contractual relationship, and tortious liability be the same without contractual relationship, but this theory has shortage as follows, it haven't cognized the character of contract law and tort law, and the character of default liability and tortious liability exactly, it is disadvantage to protect victim's benefit. Claim concurrent considered when the concurrence happen, there are two claims that appear at the same but independent with each other, it has two embranchments, free concurrence of claims and interactional claims. Free concurrence of claims emphasis on protect to creditor, but ignore the benefit of debtor, so it await for revising, Interactional claims modified the free concurrence of claims, but this modification is not good to the victim, and it is hard to justify itself. The provision of article 122 in contract law of China is another embranchment of the concurrence of claim; it is an absolutely concurrence, and it is disadvantageous to protect victim, the balance of interests between the party would be broken badly. Concurrent norm of law of claim consider that, if one fact is in accordance with the requisites of constitutive elements of default act and tort, there isn't two impendent claims but only one come into being. There are two laws as the basic of claim, they are contract law and tort law, this theory is a modification of formers, however, it has obvious limitation, one hand there is contravene with concurrence theory, the other hand it isn't good to protect victim.The third part deals with the theory about concurrence between default liability and tortious liability. The relationship between claim and concurrent liability is closely, on traditional theories; there are different opinions about the form of the claim, one or two claims come into being when the concurrence happens, however those parlance have advisable feature, but problem existed too, plural claim is not agree with life, it is hard to think that one fact but two claims; single claim accord with life, but there is problem of itself, it haven't carried out finally. In fact, there is an all-around claim appears when default liability and tortious liability compete, all contents of this claim should be remedied in lawsuit. It is the damages that the concurrence theories deal with, but those theories can't find a balance point between damage and damages, it results in the benefit unbalance in order to avoid double liability, double liability is a possible result that caused by concurrent liability, the wrong way, the benefit unbalance. Actually, compensation for all damage would not result in double liability through lawsuit. The civil remedy is sufficient and various, nevertheless, the tortious remedy and contractual remedy are not all the same, theoretically speaking, they can't be substituted mutually, so they should be simultaneous remedied, and damages should accord with damage, the damage happened, the damages appeared, however, traditional theories can't achieve this aim, benefit unbalance appeared, and can't achieve justice and full protect of right, this is the limitation of those theories that need to be reformed.The last part is about the reformation of theories. The author considers that the resolvent would be found in lawsuit. Follow from the animadversion of traditional theories, the new opinion come into being, it is aggregate norm of law of claim. The theory consider that oblige has only one right of claim when a fact accord with the provision of default liability and tortious liability at the same time, but the law basic that concurrent and acting is plural. Compare with traditional theories, there is substantial difference, it comes in for the advantage and overcome the objection, the fair justice could finally realized. And in lawsuit, the aggregate theory insist on the principle that against jeopardy of double judgment, it ensures the efficiency of lawsuit and the authority of judgment, the problem of concurrence solved, benefit balance realized, there is also the explanation of the prescription of action, evidential burden and evidence, exemption clause and jurisdiction of the court.In conclusion, the main purpose of this paper is to find a reasonable way that could solve the problem of concurrence between default liability and tortious liability, and consummate the related theory.