Research On The Concurrence Of Tort Liability And Responsibility Of Breach Of Contract

When the same illegal behavior between the same parties conform to the constituents of tort liability and responsibility of breach of contract simultaneously, the same elements which pay the same content make tort liability and responsibility of breach of contract coexist but conflict each other. So the concurrence of tort liability and responsibility of breach of contract come into being.It is the root cause of the concurrence of tort liability and responsibility of breach of contract that the unity and struggle of both sides of the contradiction connect and restrict each other, when tort liability and responsibility of breach of contract contradict each other in the development process with the separation of contract law and tort law.The concurrence of tort liability and responsibility of breach of contract has three traditional basic theories: the theory of legal provision concurrence, the theory of claim concurrence, and the theory of claim standard concurrence.The author thinks that the theory of claim standard concurrence can be adopted, but it should have modification of the understanding: The unified claim is a comprehensive complete claim. It manifests the lawful rights and interests of the litigant. It has two legal bases, one is contractual relationship,and the other is tortious relationship. The unified claim has two aspects, namely affirmative aspect and negative aspect. When the liability concurrence appears, if the responsibility of breach of contract is chosen, affirmative aspect is the legal basis for contractual relationship, negative aspect is the legal basis for tort relation. Choose infringement liability, conversely. Affirmative aspect and negative aspect conflict against each other. Only one is chosen. But they are unified on the basis of maintaining the lawful rights and interests of the litigant concerned, to realize the claim. However, when affirmative aspect of the concurrence is denied, negative aspect will rise to the dominant position and become the new affirmative aspect, but it still is unified in protecting the legitimate rights and interests of the litigant. So, if a legal basis for the claim is denied, the litigant still can make a claim on the basis of another legal basis (new affirmative aspect) to protect the lawful rights and interests.What kind of theory adopted for the article 122 of our country Contract Law is controversial. Some scholars advocate the theory of claim standard concurrence and more scholars believe that the theory of claim concurrence should be adopted. Mr. HanShiYuan amended the theory of claim free concurrence and put forward"the theory of claim limited free concurrence".The author thinks that the article 122 of our country Contract Law should adopt the theory of claim standard concurrence. Chinese scholars who have advocated the theory of claim concurrence only see the contradiction and conflict between them and they are unaware of identity. They are a unity, there is dialectical relationship of unity of opposites between affirmative aspect and negative aspect. This sense of one-sided is wrong. When it cannot safeguard the lawful rights and interests of the litigant fully through choosing one of the liabilities, They will deny liability concurrence absolutely, or justify it difficultly.The relationship of tort liability and responsibility of breach of contract is quite complicated in a tort of the third party and performing harmfully, Which is quite controversial in Academic and is worth studying. Through the case analysis, the author mainly studies the two typical liability concurrence morphology so as to understand the theory and system of the concurrence of tort liability and responsibility of breach of contract deeply in the second part of the thesis.The article 122 of our country Contract Law makes specific provision for performing harmfully and liability concurrence system. Upon the concept of performing harmfully, many scholars call it" infringing claims actively" in Germany and it is called "incomplete pay" in Japan and Taiwan. If there are only blemishes but no infringement of creditor's inherent benefit , it is not the issue of infringing claims actively.Mr. LiYongJun thinks that it is anything but the liability concurrence when infringing claims actively caused the dual loss of the performing interests and inherent benefit, but it is the integration of the two relief means according to the contract or tort law and traditional theoretical basis. Because the article 122 of our current Contract Law adopted the theory of pure concurrence, it can not provide appropriate relief to the litigant.The author thinks that there is the concurrence of tort liability and responsibility of breach of contract in performing harmfully, but quite complicated situation will appear in some exceptions, for example, special responsibility polymerization phenomenon again. The dialectic negation view is that denial is the links of contact and development, denial contains affirmation. Studying the concurrence of tort liability and responsibility of breach of contract, we must see affirmative aspect and negative aspect of the liability concurrence at the same time. Current liability concurrence is affirmed by affirmative aspect and denial is the self-denial which is caused by the inner contradictions of the liability concurrence in special circumstances, liability concurrence is converted into responsibility polymerization again in special circumstances. This is caused by the inherent contradictions and inherent defects of the system of liability concurrence. It conforms to the objective law of the development of things, so it is not necessary to make a fuss and deny the system of liability concurrence absolutely. What we have to do is how to perfect the system of liability concurrence, in order to adapt to the needs of the development of the thing itself. Overcome the complexity of the facts in life and law and dialectically analyze to realize the purpose safeguarding the lawful rights of the litigants.In the third part of the thesis, the author discusses the solutions of the concurrence of tort liability and responsibility of breach of contract in detail. From the legislation and case of the countries, the concurrence of tort liability and responsibility of breach of contract includes the following three specific patterns: (1) the pattern of prohibiting the concurrence, (2) the pattern of allowing the concurrence , (3) the lawsuit pattern of limited choice .The author thinks that the pattern of allowing the concurrence is more conducive to protect the lawful rights and interests of the litigant, the other two modes cannot reflect the value of implementing legal system Settings. But the author advocates that this model should adopt the theory of claim standard concurrence which is revised above. Then contradictions analysis method is introduced into the concurrence mode which is designed by thinking of movement, contact, change and development. And the internal contradictions of the concurrence of tort liability and responsibility of breach of contract are source of power of promoting development mode change. Its purpose is to safeguard the lawful rights and interests of the litigants fully, in order to realize the social fairness and justice.In the past liability concurrence was prohibited in China. In 1999, the Contract Law was promulgated. The article 122, which is about provision of the concurrence of tort liability and responsibility of breach of contract, adopts the pattern of allowing the concurrence in the Contract Law. The system of liability concurrence was formally confirmed in China.Clearing tort liability and responsibility of breach of contract, the victim can have the standard and reason of choice and can make the right choice, thus their legitimate rights and interests is protected strongly.In institutional choice of the liability concurrence of our country Contract Law, the spiritual damage compensation cannot be relieved through choosing responsibility of breach of contract and the damage of product itself cannot be relieved through choosing tort liability. In order to solve the inherent defect, the author puts forward "added litigation system". When cross superposition appear between tort liability and responsibility of breach of contract, there are two legal bases, one is contractual relationship, the other is tortious relationship. When this action cannot give the litigant enough relief through choosing a kind of responsibility lawsuit and applying a legal basis, the supplement lawsuit should be adopted by another legal basis. We can solve the case which should be concerned in a lawsuit to solve disputes through a lawsuit in added litigation system, which saves judicial resources and provides convenience of litigation. The litigants can settle disputes quickly. It does not increase the lawsuit tired, also avoid the conflict of judgment, not to bear double responsibilities, not double identity in multiple lawsuits and increase the burden of the litigants and court, loss of civil action, can realize the purpose of solving the civil lawsuit once.Contradictions analysis method is the basic method of materialist dialectics. The unity of opposites of the contradiction exist in the concurrence of tort liability and responsibility of breach of contract. Identity of mutual connection, interdependence and interaction exist in both sides of the conflict between tort liability and responsibility of breach of contract. Struggle of separating and conflicting mutually is quite prominent in the liability concurrence. But they have the same purpose, which is to be the legal remedies of the same damage. Because of the same purpose and the exclusion, we must choose only one of them.When tort liability and responsibility of breach of contract meet together for the same obligations of the same violation behavior between the same parties, there are the main contradiction and non-principal contradiction, the main aspect and the non-principal aspect of contradiction in them. They are different in each specific case. It is the reflection of particularity of contradiction. " Liability concurrence is the main contradiction , added litigation is non-principal contradiction ", which is established according to the particularity.Contradictions analysis method should be introduced into research on the concurrence of tort liability and responsibility of breach of contract by dialectical thinking of the contradiction. In the unity of opposites relationship of the contradiction, we design the legal system to fill legal loopholes and protect the lawful rights and interests of the litigants, in order to realize the social fairness and justice.