On The Relationship Between Tort Liability And Contractual Liability

Since Roman law, tort liability and contractual liability have been two independent liabilities in civil liability system. Traditional civil law divides civil liability into two parts: tort liability and contractual liability. In its opinions, contractual liability is created when contractual parties don't perform contractual duties. Tort liability is created when non-contractual parties infringe others' rights. Being the design of system, law must confirm the relations between tort liability and contractual liability, which defines the scope of each other and avoid the effect from each other. For in law, contractual liability is a special liability and tort liability is a common liability, as it is the scope of tort liability outside the scope of contractual liability. But the sorts of tort liability and contractual liability damage the benefits of parties, even result in unfair conditions. Therefore, the thesis discusses the expansion and penetration between tort liability and contractual liability.There are four parts in the thesis, except the introduction:The first part discusses the standards to tell about tort liability from contractual liability in traditional civil law fundamental, which is the liability nature and protected benefits. The thesis believes it is reasonable, to some extent, to tell tort liability from contractual one according to liability nature and protected benefits in 19th century. But nowadays, it is unreasonable .On one side, there appears aggravation of monopoly, standard contracts and feeble consumers with the development of society and economy. And law-makers and judges begin to interfere with the contracts signed by parties .In another side, the scope between tort liability and contractual liability becomes confused due to the key function of confidence benefits. It is also important of agreement in tort possibly, and agreement could prevent tort liability in certain conditions. At the same time, contractual liability protects confidence benefits, but return benefits as well. Tort liability enhances the protection for confidence benefits, especially the pure economic loss.The second part discusses concurrent between tort liability and contractual liability. First, it analyses the reasons for concurrent between tort liability andcontractual liability, which holds the basic reasons use in the independent and coincidence of tort law and contractual law. The coincidence of two liabilities' fundamental problems is the tort liability effect expansion resulted from violent changes in society and economy. Then, it discusses and analyses the three ways to treat concurrent in other countries by comparison. Meanwhile, it discusses die theories, legislation and judicial practice about concurrent in China and suggests that China should perfect the liability concurrent system via studying to confirm concurrent. Finally, it comprehensively discusses the contract-breach spirit damage compensation in the world and provide the system design for China.The third part discusses the development of modern tort law and contractual law in new conditions .For the fast advancement of social economy and attract of tort liability, two law family nations break the contract relative principle and create many new contract systems, which expands the protection effect for the third party of contractual liability.The last part analyses the future development and trend of two liabilities. And it provides author's own ideas while facing the development of modern tort liability and contractual liability.