The Theory Of The Constituent Of Fault Liability To Contract

The fault liability to contract is an important legal principal existing in the contract law of Civil Law System. The theory of the fault liability to contract is originated from the civil litigation of Roman law. It was first posed by Jhering, a famous German jurist in 1861.The proposition of the concept has a further effect on every country's legislation and judicial precedent. In our country the theory and legislation of the fault liability to contract started very late. Our country clearly takes the fault liability to contract as a new system and provide the new system as a legal basis for judge in the trial practice. But we should also see that the provision of the fault liability to contract in our country's "contract law" still revealed coarsely, which has not mentioned to its compensation scope, and the compensation standard, and also insufficiently prescribed its applicable scope, and still had some difficulties in the judicial practice concrete operation. As mentioned above our country "Contract Law" has the insufficiency so this article will make a discussion to the Constituent of Fault Liability to Contract, and hope that the article will be benefit for the fundamental research and the judicial practice of the fault liability to contract's system.This paper is divided into 4 chapters totally. Chapter 1 is an elaboration on the general theories of constituent of fault Liability to contract. The theory first proposed by German jurist Jhering, is a reflection of the value of the idea of selfishness, to make up for the shortcomings of traditional civil liability system. Culpa on the elements of the elements of a unified theory that the two elements that the three elements that the four elements that the theory of five elements in five said.The second chapter delimits the problems of the theory, the problems are the following three aspects: first, with no effective as a contractual relationship culpa objective constitutes one of the elements, resulting in a contracting reducing the size of the faults of the application; second to the interests of the trust as a basis for damages for improper; Third, the subjective constituent of the terms were too wide.The third chapter delimits the objective constituent of fault liability to contract. According to the general principle of civil liability and its characteristic, the liability contains the following constitutive requirements: 1) it caused in concluding a contract; 2) violating the obligation of pre-contract; 3) the other party has loss caused thereby; 4) causality between the acts and the loss is required.The fourth chapter delimits the subjective constituent of fault liability to contract. This chapter is divided into two parts, first, the principle of freedom and the principle of good faith. Second, in regard to the first analysis on the basis proposed, the subjective constituent should be deliberate and gross negligence, does not include minor fault.