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Comparative Study Of Processing Mode Of Liability For Breach And Tort Liability Concurrence

Posted on:2011-01-29Degree:MasterType:Thesis
Country:ChinaCandidate:Q SongFull Text:PDF
GTID:2166360332955468Subject:Law
Abstract/Summary:PDF Full Text Request
Liability for breach and tort liability are two types of basic civil liabilities, how to deal with the concurrence of the two liabilities is an important issue which has confused our legal community and judicial practice departments for a long time. The provision about the concurrence of liability for breach and tort liability in《Contract Law》Article 122 is a breakthrough in China's legislation; however, we still face a number of challenges as to how to correctly interpret and apply this provision as well as how to improve it.This study aims to enrich theories on liability concurrence; solve the difficult problems in judicial practice and achieve the maximum value of legislation, that is, to protect the interests of the victims. It examines the processing mode of concurrence of liability for breach and tort liability based on comparative perspective. Based on the analysis of various doctrines and judicial practices in different countries, the author believes that the concurrence processing mode should be allowed. Meanwhile, the author also points out that the theoretical basis should based on Unification of Legal Effect instead of Concurrence of Right.The author holds that conditions on liability concurrence must be made clearly in law while recognizing liability concurrence, and the victim's choice right should be properly restricted. Specifically, in order to fully and effectively protect the legitimate rights of the interested parties, it is necessary to supplement additional provisions or conduct special legislation on the basis of Article 122, which allows the interested parties to invoke another responsibility to relieve their rights while choosing one responsibility, that is to say, action for breach and tort suit can be used at the same time and place on certain conditions. For example, when the victim has serious physical injury, even if the victim has chosen contract claims, the damage to the spirit of the interests still should be relieved. There are five chapters in this paper. Chapter one introduces intention and purpose that the author conducted the study to compare the processing mode of liability for breach and tort liability concurrence; Chapter two clearly defines the meaning of liability for breach and tort liability concurrence and examines its cause and current status in detail; In chapter three, through comparing the various typical doctrines of extraterritorial and examining the processing modes in practice, the nature of the problem was made clear, from which those that are worth learning are extracted; Chapter four analyzes provisions on responsibility concurrence in《ontract Law》Article 122 and points out some problems remained to be improved in legislation and their solutions by referring to comparative law; Lastly, the paper ends with the conclusion.
Keywords/Search Tags:Liability for Breach, Tort Liability, Concurrence, Processing Mode
PDF Full Text Request
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