On The Concurrence Of The Liability For Breach Of Contract And Tort

The liability for breach of contracts and the liability for infringement of rights are two important civil liabilities in civil law. When they are coincident, will it produce one right of claim or two rights of claim? And how the two victim choose and use the right of claim? It's of great significance for them. The scholars of civil law system have put forward many theories. And there are also many modes in practice. But there exist certain shortcomings in these theories and practices. So they can't settle the question of the coincidence of the liability for breach of contracts and the tortious liability thorough. The scholars of our country also have different views in the question of the coincidence of the liability for breach of contracts and the tortious liability. The provision of the legislation about this question is mainly reflected in clause NO. 122 in the contract law of our country. But this provision also exists obvious shortcoming. As regard to me, the author, I think we can add an independent legal relationship of contracts and infringement of rights and then we can reconstruct the coincidence of the liability for breach of contracts and the tortious liability based on the traditional classification about the fundamental legal relations that produce the right of claim of the obligations. And this addendum can be based on the mode of construction of the theories on the liability coincidence. To do this, we also should follow the thinking that certain legal fact produce the corresponding legal relationship and then produce the corresponding right of claim. We can consider to briefly provide a provision in the "civil liability" part of the civil code. The provision is that the person who has the right of claim should put forward the request within the scope of the legislation purpose according to the principle of honest and credibility. In the judicial practice, we can go step further to definite the relevant problems. As regard to the coincidence of the liability for breach of contracts and the tortious liability, the author suggests that there should be necessary modifications of the clause No. 122 of the contract law.