On Competing Breach Of Contract Claims And Infringement Claims

Breach of contract claims and infringement claims are two basic civil rights to request. The competing of infringement and breach of contract claims is the composition of breach of contract and tort, leading to one has infringement and breach of contract two claims to the other one.The direct cause of the competing breach of contract claims and infringement claims is the historical distinction of contract law and tort law, and the fundamental reason lies in the complexity of social relations, the non-complete separated of contract law and tort law which caused by the multiplicity of the nature of human behavior, accompanying with the emergence and development of obligation further increase in the possibility of competing. Overlap of Articles of Law said, the competing claim said, the competing requests right regulate said, that the three doctrines have their own defects, all have not been able to resolve the problem of competing claims. In judicial practice, the civil law countries often have two approaches: allow competing and the prohibition of competing; in Britain and the United States, the basic position of case law is that the accused have the right to choose infringement claim, or if the plaintiff thinks that infringement is in his favor, then he can initiate infringement proceedings or double filed, unless the contract expressly or impliedly exclude him from doing so.On default and the right to request the right to request competing infringement, the different theories are unsatisfactory, the various models are not quite reasonable.On the competing of Breach of contract claims and infringement claims, We should focus on two major aspects to consider the rationality of the responsibilities competing mechanisms. First, the balance of the entities interests; second the simply of the procedure.On the balance of Entities interests, the main guiding principle is that the victim's loss should be fully compensated, and the perpetrators should not unnecessarily burden the double liability; On the proceedings, it should be benefit for the litigation, save litigation's costs .According to the two guiding ideology, the mode choice of right performance should be only limited to whether exercise the right to request and whether the all requests are accessed, rather than the choice of exercising this request right or that one. On competing, the performance of request right is not a reflection of autonomy and do not have the rationality of legal; On the performance way, no matter how many request right are caused by the same Legal facts, they should be performed once, not by separately;The content of request right should be the all loss of parties. Therefore, the content of China's "Contract Law" section 122 should be amended.