On The Principle Of Fault Liability For Breach Of Contract

The PRC Contract section 107 provides that: a party does not perform its contractual obligations or does not comply with its obligations under the contract agreement, should undertake to continue to carry out, or to take remedial measures, or to take liability for the damages. Most scholars believe that the China's contract law is based on the principle of strict liability attribution. But it is undeniable that in the contract law of China, the same principle of the liability is the principle of fault liability , such as in general part of contract law in China, exists 113 "reasonably foreseeable rule", 119 "mitigate rule", 120 "fault offset rule"; in sub-contract, 189, 191, 195, 231, 256, 257, 265, 302, 303, 311, 320, 370, 374, 375, 406 are all the embodiment of the principle of fault liability in China's Contract Law.This paper was written around the principle of fault liability, first of all, the concept of the principle of fault liability, as well as its origin and development is discussed. Against the attribution controversial legislation of China's Contract Law, I believe that our country should adopt the dual system of attribution, including the principle of strict liability and the principle of fault liability, The comparison study of some country's contract law proves this point; Secondly further analysis of the types of contracts which adopt the principle of the fault liability, help to prove the legitimacy of the existence of the principle of fault liability, Later, the application of the fault liability principle in China's Contract Law are discussed in detail, including the type and degree of fault, the criteria for judging fault, the prove and presumption of fault, the debtor's fault, and the fault of the creditor, the fault and the default, the fault and the risk, the fault and the relationship between fault and damages, the fault and damages. Finally the principle of fault liability in contract law and the principle of fault liability in the tort law are compared. This paper is divided into a total of five chapters.Chapter I: The principle of fault and the dual structure of attribution in China's Contract Law. Section one first introduces the concept of fault principle of the liability, as well as its origin and its development, the principle of fault liability in contract law, considers the fault as a attribution of default liability, is that one violates its obligations under the contract, fails to perform or not take the proper performance of the contract, should consider fault as the element of liability and the basis of liability. Then section two against the attribution controversial legislation and legislative status quo, the argument is primarily for a single principle of strict liability or the dual structure, I have three reasons to justify the existence of the dual system, including the principle of strict can not be applied in the civil contractual content; single principle of strict liability has its inevitable shortcomings that require fault principle of the liability to supplement, a single principle of strict liability can not conform to the tendency of the national legislation and judicial practice. Section three the author conduct attribution comparison study on the common law, civil law, international commercial rules, principle of attribution in our contract is in line with the trend of global contract law.Chapter II: Fault principle of the liability for the normative functions and legitimacy of proof. I summarize the types of contracts which adopt the principle of fault, conclude through the typical and atypical contracts, I have a conclusion that the principle of fault liability mainly regulates civil contracts and commercial contracts which have civil contractual content. Next, the legitimacy of fault attribution is discussed, that the principle of fault liability has applied in the civil contracts and commercial contracts which have civil contractual content because it is compared to the principle of strict liability, more ethical, more conducive ,can help to maintain feelings among people, more in line with the technical requirements of the Contract Law.Chapter III is the application of the principle of fault liability (1).The author has discussed the type and the degree of the fault, the criteria of the fault, the prove and the presumption of fault, the fault of the debtor, the fault of the creditor. The fault liability principle in contract law is also divided into deliberate and negligence, the negligence can also points a major fault and light fault; the criteria of fault should adhere to objective standards, the fault is believed to see whether the debtor violate his duty of care; fault can be presumed out, the presumption of fault in contract can be divided into the general presumption of fault and the special presumption of fault; the fault of the people who support the debtor shall be considered as the fault of the debtor, the debtor should responsible for the fault of the people who support the debtor; creditor's fault can be divided into the following types: the creditor act itself constitutes a breach of contract, negligence, the debtor breach of contract, the creditor also breach of contract, creditor's fault can reduce or waive the debtor's liability.Chapter IV is the application of the principle of fault liability (2).The author discusses fault and default, risk, causal relationship, damages. I believe although default is linked to the fault identification and evaluation, through the default behavior, but default refer only to objective facts, but not the subjective factor, and the fault of the debtor is the subjective facts which is independent of default behavior. The principle of the fault could be better distribute risk-sharing between the debtor and the creditor, causal relationship and the fault are two different elements in the fault principle, and both are essential, the causal relationship is the first step, and that is the fault the second step, causal relationship mainly determine whether liability exists, the fault not only determine whether liability exists, but also the scope the liability is, the two can co-accurate position liability for breach of contract, in the establishment of causal relationship, we should consider fault factor, but we can not confuse fault and relationship, the extent of the debtor's fault determines the scope of liability, the fault of the creditor to reduce liability.Chapter V is the fault liability principle in contract law and the fault liability principle in tort law. In the status of the respective areas, the verification, the fault and the liability, the content of duty, the people's fault influences the liability, they exist differences. The fault liability principle in tort law is the general principle of liability attribution, in tort liability system, it is the core; the principle of fault liability in contract law is special attribution principle, in contract liability system, it is in a subsidiary position. There is some same in function, they can conform to the morality, determine the standards of conduct, prevent the damage occurred .When contractual obligations and the general duty of care coincide in whole or in part, liability can attributes not only by the fault liability principle in contract law but also the fault liability principle in tort law.In this paper, the author has a comprehensive exposition for the principle of fault liability, hopes that the paper can do some contribution to this issue's further research.