Injuring Study

Begleitsscheden, namely positive Forderungsverletzung (in Germany), or Incomplete Fulfillment (in Taiwan), was put forward by Staub, the great German Jurist in 1902. The aim of this doctrine praised as " Juristiche Entdekung" was to make up for the legal loopholes made by the dual division of German law of breach of contract. The court also cited this doctrine to pass judgments. Thus the theory became the habitual law outside the Civil Code. The theory, legislation and judicial of Japan and Taiwan have been greatly affected by it. Guided by the relevant treaty of the UN and Urged by the direction of the EU, The new Law of Breach of contract made amendments to its previous Schuldrechts, making Pflichtverletzung the new and central base for right of claim. That is, Article 280 (compensation due to Pflichtverletzung) generally applies to all kinds of fulfillment barriers, including the breach of Hauptleistungspflicht, Nebenpflicht and Schutzpflicht. Positive Forderungsverletzung, which originated from the joint effort of doctrines and precedents, was codified, and this made legal norms more perfect and adapt better to the logic structure of the civil code and the guide of international Treaties. Thus the rationalization, clearness and harmony of legal application came out. In this way the German Civil Code Progressed with time and realized its modernization.By way of Japan, Taiwan learned from Germany. Article 227 of its Civil Law regulates Incomplete Fulfillment. Scholars argued on whether the Incomplete Fulfillment is Positive Forderungsverletzung or not. In Apr. 1994, the law decrees incomplete Fulfilment be one type of non- Fulfillment of schuld by amendment to its Schuldrechts.The Anglo-American law hasn't the concept of positive Forderungsverletzung, but has this system actually. Its precedents can reach the same aim as the Continental law by other means, that is, its laws give remedies by "the Rule of Predictability " and " the damages resulting from the natural consequence of breach of contract" as well as other methods.In the past, legislation valued simplicity, judicial pragmatism, and theory alceofness in China. Article 122 of the unified Contract Law firstly and formally established Begleitsschaden and Liabilities Coincidence system. GPCL and other special civil laws also have some scattered regulations, However, those special laws and regulations stay outside the Civil Code, among which are quite a few regulations inconsistent with the basic civil law. And the lack of complete, clear regulations usually lead to conflicts among themselves. This state isn't beneficial to the unification of legality, to the recognition of citizens and to theformation of law order. Article 122 regulates: if the breach of contract by either party causes infringement on the personal or property rights and interests to the other party, the injured party has the right to choose whether to demand that the breaching party bear the liability for breach of contract pursuant to this Law or bear the liability for infringement of rights in accordance with other laws. However, can the injured party refuse to choose the right of claim provided that he be able to predict the ascertainment of facts and the scope of remedies? Can he alter the right of claim when he's chosen an inappropriate one? Can the court permit it when the injured party has started a legal action by combining both rights of claim and only asking the counterpart to perform fulfillment of the same content? Can this affect the counterpart's counterarguments or defense? May the power of effective judgments hinder it when the injured party brings lawsuit according to the other right of claim provided that he failed due to limitation of Action or liability of bringing testimony in the trial when he brought a lawsuit according to one right of claim. If the Injured party is allowed to bring a lawsuit again, how can the economical action be realized or the judgment conflicts be avoided? Besides the coincidence between the contractual liability and torts liability, must...