The Claim Concurrence Of Injuring Performance

Injuring performance system is a new issue in the development of civil law, also is an important issue in civil legislation and justice in China. Chinese scholars have different opinions on the definition, character, especially on setting remedy for damage caused by injuring performance, which causes big trouble in research, legislation and justice. For better resolution to these problems, the author tried to put forth some new ideas, which is no matter the plaintiff brings a litigation of tort or breach, his damages can be relieved impartially through one of the two litigations mentioned above. The author begins with its definition and character to parse applicable injuring performance system. Therefore, the author points out the reason why this system cannot provide remedy for the damage. The author thinks claim mutual-influence theory is more reasonable than claim free-coalition theory adopted in contract law. Though claim mutual-influence theory cannot provide a perfect resolution to the damages for injuring performance, it is not caused by itself, but the duality partition of the traditional civil law system. Because of that situation, the author advances some constructive suggestions to settle down the problems of injuring performance, which is, based on claim mutual-influence theory, to use the contractual remedy to relieve the inhere profits(including psychic damage)and employ the remedy of tort law to relieve the performing profits.The main points of this article are as follows: firstly, the definition of injuring performance: it is a kind of infringement, also an obligation caused by debtor when he acts against the provisions of a contract and not only damages the performing benefits of the creditor but also the proper benefits (including mental injury) of the creditor. However, injuring performance sometimes just damages the proper benefits of the creditor, which is not the normality but a special situation of it; secondly, injuring performance is suitable for both the constructive conditions of breach of contract and infringement, and it has double attributes of breach and infringement; thirdly, the author thinks injuring performance is necessarily to lead to concurrent liability, when deal with the civil responsibility caused by injuring performance, there are defects in the theory of concurrent liability, it is better to adopt the theory of two claims affected each other; fourthly, the author thinks the theory of contractual responsibility should be employed to give remedy to psychological damage; fifthly, because of the infringement attribute of injuring performance, the author thinks the remedy method provided in tort law should be employed to give remedy to the damage of performing benefits, so as to, no matter through breach action or tort action, make the victim get just compensation for the damage caused by injuring performance.