The Theory Of The Fault Responsibility To Contract

The theory of the responsibility to contracting fault is an important theory of civil law, it was initially proposed by German jurist Yelin in 1861. The doctrine has preferably resolved the problem of protecting the parties on the contracting conclusion stage, it has been known as the law on the momentous discovery. The theory of the responsibility to contracting fault has had a profound impact on legislation and jurisprudence of many counties, and our country is no exception. However, our academics'research starts late, the concept of responsibility to the contracting fault, the type, the basis of the right to request, the main responsibilities, the scope of responsibility is highly controversial, and in some aspects it is lacking in-depth study. At present, China's Civil Code enacted in the ongoing work to strengthen the responsibility of the contracting fault and on advancing the construction of a system of the Civil Code of debt is of great significance.There are four parts in this article.The first part focuses on the concept of contracting fault responsibility theory, and its characteristics, types, background, and the developments in different countries.First, the article defining the concept of the contracting fault responsibility theory. For Chinese scholars have many controversial opinions on this, the author summed up the concept of the contracting faults responsibility theory on the basis of the diversified theory, and on the basis of the concept simple summed up its characteristics. Then according to the "PRC Contract Law" and the relevant laws and regulations, the author introduced nine major types of the theory, it can also be understood as its main scope. Any theory has its background and the development process, by analyzing it; we can better define the nature of theory and refine their specific application. Contracting fault responsibility theory is no exception. And this is the main contents of the second, third subsection in the first part of the article. The contracting fault responsibility theory has it's infancy in the period of Roman law, but did not have a theory. German jurist Yelin is the one who first systemically analysis the theory. And then, after more than 140 years of development, most civil law countries confirm the theory in varying degrees in the legislation, Even private international law have also has the corresponding regulations. And the difference is that the Anglo-American common law has not formed a contracting fault responsibility theory, but in the long-term practice of administration of justice, through case law and the development of the way, common law countries also produce a system which has the same function with the contracting fault responsibility theory, the system is the "Promissory Estoppel principle."The second part is the analysis of the composing of the theory.About the basis of the right to request of the theory, scholars at home and abroad have four main points, namely: "violations", "legal", "law" and "good faith principle." After the analysis of the various theories, I believe that the request of the theory should be based on the right to "the principle of good faith." Since contracting fault liability and liability for breach of contract, tort liability have many similarities, if not carried out correctly on the distinction between the three, it will be easily troubled by the workers to justice. Therefore, the second section of this second part distinct the three main form of liability in the nature of responsibility, the main responsibility, liability principles, the commitment, and other aspects, with a view to be helpful to the different application.The composing Elements of the theory refers to the party who disobey contractual obligations and cause the damages and losses of relatives, he must have to bear civil liability with the conditions. After analysis different points of view of Chinese scholars, the author prefers to adopt the four elements doctrine. Namely: 1. Parties violated the contract obligations. 2. The one who disobey contractual obligations has faults. 3. Relatives have damages on the interests of the trust. 4. There are causal relationship between the conduct of violating the contract obligations and the damages on the interests of the trust.The third part of the article analysis the responsibility bearing issues.Any form of liability has the interests to protect, the responsibility to contracting fault protect the trust interests of the parties, this is the-law experts said there is no objection. But whether including vested interest, it's in dispute. I believe that the contracting fault responsibility protection should include the object both of the trust interests and vested interest. The scope of compensation of the theory is effected by many factors, there are two main situations: First, the interests of non-property is not the responsibility of the contracting fault compensation areas, That is, non-property damages that the mental damages is the traditional areas of Infringement responsibility, Therefore, the principle of non-property damages could not apply trust interests compensation. The second, the contracting fault liability damages, whether including the indirect losses or not, Scholars with different views, it should also be a concrete analysis of specific situations. If one party disobey the contractual obligations and cause the damages of the other party by losing contracting opportunities, no compensation is inequitable, is not conducive to maintaining the normal order of market transactions. After ascertaining the scope of compensation of the theory, we have to solve the responsibility of the contracting fault the principle of compensation, which is a basis for compensation. There are three versions: 1. should not exceed the aggregate amount of compensation to the principle of interest. 2. Principle of fault offset. 3. Profit and loss balance principle.In addition, on the conclusion of the contract stage, will appear contracting fault liability, liability for breach of contract, tortious liability responsibility of the three competing, in this case, parties can choose any right to exercise for safeguarding their own interests.China's academic research on the responsibility of the contracting fault starts late. Although our new "contract law" has taken a great step forward in improving the market economy system, and play a great role in maintaining the market economic order and in protecting the legitimate rights and interests of parties to transactions, however, there are still many deficiencies. Based on this, the author made a number of recommendations both in the legislative and judiciary. First, in the Style of legislation, make a unification of the General and sub-unification. Second, set a clear concept of responsibility to the contracting fault. Third, reasonably confirm the scope of application of the theory. Fourth, establishing the scope of compensation and the compensation standards. Fifth, clearly defining the Imputation principles of the theory. Sixth, make different disposal in different situation in the onus of proof. Above is the main content of Part four of this paper.