Study On Concurrence Of The Claim Of Default And The Claim In Tort

With the development of society, science and technology, the social relations between people have became increasingly complicated. Accodingly, the laws which regulate the social relations are also progressed and the subdivision of legal departments is more and more obvious. However, the adjustment between each department is not entirely different, but intercrossed. So, it will frequently appear that one legal fact coincide a number of laws and regulations in components and elements, this is the so called"norm concurrence". Norm concurrence usually occurs inside the same legal departments, such as criminal law, civil law and so on. The norm concurrence that occurs in civil field---from the perspective of one party who suffered damage---may also be known as concurrence of the right of claims. Among all sorts of the concurrence of the right of claims, the concurrence of claim of default and claim in tort is the most common phenomena. Although the question of the concurrence of claim of default and claim in tort has long been discussed, the scholars have not yet form a consensus. For the purpose of the system of the concurrence of claim of default and claim in tort is intended to fully protect the interests of victims as well as to avoid that the wrongful feasor has to bear double liability. This paper, giving a comparative analysis with doctrines and other countries legal practice on this issue, makes comments on our country's provision, analyzes its shortcomings and then putting forward some suggestion for improvement.This paper, in addition to the introduction, is divided into three parts:The first part is to introduce the implication of the concurrence of claim of default and claim in tort and the reason for why this phenomena occurs. First, this part introduces some basic concepts of the concurrence of the claims, and then gives its comparison with some similar concepts. Besides, this part analyzes the distinctions between the claim of default and the claim in tort, and the theoretical basis and the realistic reason of the the concurrence of claim of default and claim in tort.The second section is to make a comparative analysis with the doctrines and the legal practice on the concurrence of claim of default and claim in tort in other countries. This part introduces the three main doctrines of the concurrence of claim of default and claim in tort at first: the concurrence of the legal provisions said, the concurrence of the right of claims said (include the free concurrence of claims said and the interaction of the claims said), the concurrence of norm of claims said. Although all of them have some advisible features, but defects existed as well. Then make a comparative analysis with the three models on the concurrence of claim of default and claim in tort in other countries'legal practice, analyzing its advantages and disadvantages, to take warning for our country.The third part is to introduce our country's choice on the concurrence of claim of default and claim in tort and its improvement. First, the viewpoints of the scholars on Chinese mainland on this issue are introduced, and make a analysis on the provisions of our country's Contract Law on this question. I believe that, although the Contract Law of China gave the party suffered, to a certain degree, the right to choose which claim to be used freely, and its provision also avoid a wrongful feasor should assume the dual liability. But sometimes no matter how to choose, the victim may not fully be compensated for the losses they had suffered. Therefore, I propose some ideas for improvement with a view to achieve equal protection of the interests of the parties of the contracts.