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Research On The Concurrence Of Default Liability And Tortious Liability

Posted on:2011-01-25Degree:MasterType:Thesis
Country:ChinaCandidate:F WangFull Text:PDF
GTID:2166360305957465Subject:Civil and Commercial Law
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Concurrence of civil liabilities is a prevalent phenomenon in civil law. In theory and judicial practice, the most common form is the concurrence of default liability and tortious liability. To properly resolve the concurrence of default liability and tortious liability issue, scholars of different countries put forward three kinds of theory: concurrent legal clause, concurrent claims and concurrence of claim norm of law. but there are still various defects in one way or another. Our "Contract Law" Article 122 establishes the concurrence of default liability and tortious liability, but there are still many deficiencies in our related systems. To achieve the full protection of the rights of victims, to maintain basic balance between the interests of victims and debtor, while enhancing effectiveness of the proceedings, save judicial resources, this paper presents some excellent recommendations. This paper is divided into three parts:Part one based on theoretical research and analysis of the concurrence of default liability and tortious liability. This part discusses the causes, components and specific concurrence forms of the concurrence of default liability and tortious liability. Differences in the form elements, the scope of compensation, responsibility and limitation offers important primise for the concurrence of default liability and tortious liability. Meanwhile, the private nature of civil liability, the espanding protection scope of contract law and compensation of tort damages become more important and offer causes for the concurrence of default liability and tortious liability. When we identified the concurrence of default liability and tortious liability, we should grasp this three elements: First, existing contractual relationship between the parties and one of the party is responsible for breach of contract; second, the breach of contract claims against the other and his personal and property rights; third, the default liability and tortious liability conflicts. Here we should distinguish between the concurrence of default liability and tortious liability and aggregate liability, as well as the not real joint debt, they can not be confused. In practice, the common form of the concurrence of default liability and tortious liability has been seen in sales contract, lease contracts, transportation contracts, storage contracts, commission contracts for electricity contracts. In fact, as long as the distinction between similar systems exist, the concurrence of default liability and tortious liability will inevitably happen. With the continuous development of modern society, the change of social phenomena and the complexity of legal relationship have produced some new specific forms that can not be completely confined to cite in this article.Part two focuses on competing theories and the typical foreign-related processing mode of the concurrence of default liability and tortious liability. Currently there are three international theories of the concurrence of default liability and tortious liability:The first theory is the concurrent legal clause. This theory evolved into two branches: the first is the pure coincidence of Articles. This theory thinks that the law of default liability and tortious liability should be applicable to different situations, thetwo should be absolutely separate, the concurrence of the two does not exit. The Second is compromise for the concurrent legal clause. It thinks that, although contract law and tort law dominate the different jurisdictions, but they also have some same parts. In those same parts, the concurrence exists. It should be noted that this theory can quickly resolve the problem, save legal resources, it has some advantages, but the theory also have very obvious flaws: First, the theory recognized the tort law and the contract law as special law and common law, I am afraid that can not be grounded in theory. Second, this single and rigid kind of model is not conducive to the protection of victims.The second theory is concurrent claims. The theory has two branches. First is free concurrence of claims. The theory thinks that when an act meets the requirements of the two law at the same time, it will produce two separate claims, the creditor can choose one of them, but when one claim of elimination has reached for the purpose, the other claim should be eliminated. Second is the interactional claims. This theory thinks that,the claims based on default liability and the claims based on tortious liability can interact each other. It should be said, concurrent claims can fully protect the interests of creditors, but it completely reverse the status of the parties inconcurrent legal clause. In this theory, the debtor is going to bear double responsibility, and also unfair consequences will happen between the two parties. Also, repeated prosecutions will happen and the efficiency of litigation will be affected.The third theory is concurrence of claim norm of law. This theory thinks that if a behavior meets the requirements of default liability and tortious liability, it's not going to create two separate claims, but only to produce one claim. If a claim based on one legal basis has not established, another claim based on the other basis is not affected. It should be said, compared with the concurrent legal clause and concurrent claims , concurrence of claim norm of law indeed has obvious progress in theory. On one hand, it absorbs the reasonable protection mode, to avoid unreasonable circumstances happened in concurrent claims ; On the other hand, it retained the full protection mode of concurrent claims, and established new institutional arrangements on this basis. However, there are also obvious shortcomings in this theory. From the view of national legislation and judicial practice, while dealing with the concurrence of default liability and tortious liability issues, the countries does not endorse any of the three theories, but from three models for processing : the model against concurrence, the model allow to the concurrence and choose claims, the model of limiting the choice.Part three is about the comment and the suggestions for improvement for the concurrence of default liability and tortious liability in China. Since China has not developed a uniform civil code, the civil liability provisions scattered in various single law and judicial interpretation, so the relevant provisions in China are more messy. Article 122 of "Contract Law of the People's Republic of China" first legally clear the concurrence of default liability and tortious liability system. It should be noted that the processing mode of our country is not in correspondence with free concurrence of claims. But limit the rights of choice on this basis. This law allows the creditor to choose claims but also limit the right in the time before the court of first instance. The law defined claim suitability of many areas on the special legal relationship, can also give a prove. It should be said that to some degree the processing mode for the concurrence of default liability and tortious liability in our country can be called "competing for limited freedom." Overall, the relevant provisions of the concurrence of default liability and tortious liability in our country fully reflected the spirit of the Civil Code, provide a convenient platform for the creditor, that should be affirmed. However, because there are relatively fewer provisions of the limiting of right choices ,or saying that the relevant provisions are not specific enough, in the practice the parties will avoid disadvantages, frequently change or confusion the cause of action, abuse the options for claims.In China, dealing with the concurrence of default liability and tortious liability problem should follow the following basic ideas: First, seeking to strike a balance between the interests of the two parties; Second, ensuring a balance between the interests of the two parties, increasing the efficiency of the proceedings, saving litigation resources. Under the guidance of this idea, this paper proposes the following recommendations:First, to limit the claims of the concurrence of default liability and tortious liability. We admit the concurrence of default liability and tortious liability, does not mean we laissez-faire the options of the two parties and cancel any restrictions. From our theory and practice of the present situation, the rights for choice parties should be limited in four aspects: the constraints of choice , the constraints of changes ,the constraints of transfer and the constraints of the number of exercises.Second, to properly resolve the compensation problem of the concurrence of default liability and tortious liability. The paper views that the establishment of the concurrence of liability and relevant provisions still reflect relatively reasonable and fair. We must recognize that the design of any systems is impossible to be perfect, and the pursuit of fairness and justice in most cases is the main objective purpose of the law. We can expansion the scope of damages and increase the amount of damages to increase the protection of creditor's rights efforts. In addition, punitive damages can also be a way to increase the protection of creditor's rights efforts, but it should be noted that we must pay attention to situations and limitations for the application of the principle of punitive damages .
Keywords/Search Tags:Default liability, Tortious liability, Concurrence, Claim
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