On The Role Of Fault In The System Of Liability For Breaching The Contract In Various Countries

Liability principles for breaching the contract is mainly about whether the fault is the necessary constitutive requirements of bearing the liabilities for breaching the contract,which has been concerning continually by the jurisprudence since 1990s.Particularly,the discussion around the above issue reached a crescendo during the stage of the legislative Motions and draft discussion about formulation of the Contract Law.What's more, numerous suspicious papers have been still being published after the Contract Law promulgated.Basing on the researches before,this paper analyses the role of fault involved in the liability principles for breaching the contract of the two law families at first,and then compares the legislation of each state via functionalism methodology in comparative law. From the comparison,the paper reaches some results which may be valuable for us to observe the relevant provisions in Chinese Contract law.The first part,which is the introduction part,points out the study range of this paper and defines some relevant definitions and dictions.And then the author gives an overview on the research status in quo by the Chinese jurisprudence and describes the research method adopted in this paper.The second part,ranging from Chapter two to Chapter four,focuses on inquiring what position does the fault occupy in the system of liability principles for breaching the contract,respectively in the civil law, represented by Germany and France,and in the common law,represented by UK and America.On this issue,the conclusions can be drawn roughly after vast research that is presumption of fault is carried out in Germany contract law,so without fault is powerful enough to save the debtor from liability.However,objective or strict liability is implemented in the common law,and only to prove the existence of objective exemptions that the debtor can be disclaimed.French law is between the above two that is objective liability,similar to the common law,is applied for resulting obligations contracts while traditional fault liability is adopted in the method obligation contract.The third part,which is Chapter Five,compares the very position of the fault in the liability systems for breaching the contract between the two law families,via functionalism methodology.From the comparison,we can see that multiple liability systems for breaching the contract are prescribed in modem contract laws,no matter in France and Germany,or in UK and America.Furthermore,for each system in the civil law,functional equivalent could be found in the common law.And the two law families tend to develop mutually in this area.In details,this paper verifies the above trend embodiment in the two law families.The forth and last part is concentrate on the use significance for reference to Chinese legislation,since researching foreign laws comparatively is aim to the use significance for reference to our country.In this chapter,on the ground of the analysis to liability principles for breaching the contract in China and the comparison the legislative differentia between China and the above three states,the author considers the positive and negative and table some proposal pertinently on law modification,trying to inspiring the exertion of the principle both in the theory and reality of our country.