Reestablish The Concurrence Of Liability Between Breach Of Contract And Tort

Concurrence between liability for breanching contract and tort si a controversial issue for long. The coincidence of contractual and tortuous liabilities is a common phenomenon is judicial practice. When they are coincident,will it produce one right of claim or two rights of claim? And how the two victim choose and use the right of claim? It's of great signficance for them. The provision of the legislation about this question is mainly reflected in clause No.122 in the Contract Law of our country. Victim should be choose one right of the both claims. But this provision also exists obvious shortcoming. But choosing which claim,result is incompletely the same. Although the basically content of the remedy is the same. Between the liability for breach of contract and liability for tort,there are important differences in the aspects of constitutive elements,comtent of the liability,evidence providing liability,etc…For the above reasons,when choosing a different right of claim would have great influence on the protection of the concerned parties'interest. But as a victim,the same damage should be obtained substantially consistent conpensation. Otherwise the fairness of procedure will lead to unfairness of entity.This paper adopted method of study on comparison,analysis on theorise and empirical cases. Around vitims how to choose the right of claim,how to protect the interests of victim. It's necessary to limit choosing the right of claim in proceeding. Finally, aothor proposed on the Torts Law legislation about concurrence of the liability of breach of contract and the liability of tort. Case when serious damge for personal interests should be protect the mental damges of the victim sum in breach of contract.Structurally,paper can be divided into five chapters:Chapter1,Comparative the commonness and characteristics between the liability of tort.Chapter2,Described kinds of theories about the liability of tort and the liability of breach of contract.Chapter3,Analysis the modes of various countries practical and the defects between liability of tort and liability for breach of contract.Chapter4,Analysis the legislation and the judicial practices on cases in current china.Chapter5,Author proposed on the Torts Law legislation in china on the concurrence of the liability of breach of contract and the liability of tort.