Foreign Breach Of Contract Adjustment Of Competing With The Tort Liability Of Private International Law

The concurrence of liability for breach of contract and tortuousliability is a controversial issue in jurisprudential circles. This thesisfocus on the foreign concurrence of liability for breach of contract andtortuous liability in international private law, on the basis of the theoryof concurrence of civil liabilities. This thesis is divided into four parts.The first part analyses the theory of concurrence of civil liabilities.Since the contract law regulate the social relation in a different waycompared with that of tort law, the one who breach the law shouldbear the liability for breach of contract in the point of view of contractlaw while bearing the tortuous liability according to the tort law, whichproduce the concurrence of liabilities. This essay discuss thecharacteristic of concurrence of liabilities and analyzes the major casesof it. After making an assay of the leading theory on the concurrence ofliabilities, the author points out that we should deal with the caseconcerning concurrence of liability for breach of contract and tortuousliability in favor of the injured party and the law supposed to give achance to the injured party to choose the right of claim. At the same timewe should also set limitations to such choice. That is while exercisingone of the right of claim, the injured party should abandon the other one,and he can't make change to the choice of which he should bear theconsequence.The second part, disserts the identification of cases foreignconcurrence of liability for breach of contract and tortuous liability.Since such cases in involve the contractual liability and tortuous liability,the different identification of these cases by the court will exercise greatinfluence on the application of law and jurisdiction. Comparing thetheory and legislation of concurrence of liabilities of several countries,the paper discuses the conflict of identification in such cases and thesolution to this kind of conflict. The author indicates that we should make identification in the light of treaty if such stipulation can be find inthe treaty or according to the law of forum on the issue. Whileidentifying in term of law of foreign, the cases can only be identified asdispute of liability of breach of contract if the law forbid the injuredparty to choose the right of claim, and there will be differentidentification of the cases by the court according to the different choiceof right of claim by the injured party if the law give permission to him tochoose the right of claim.The third part discourse the jurisdiction of cases of foreignconcurrence of liability for breach of contract and tortuous liability. Thedifferent choice of right of claim by the concerned party will lead todifferent jurisdiction in these cases, and different identification of thecases by the court result in different application of rule of jurisdiction.The dissertation discuss the rule of jurisdiction adopted in such cases ofsome countries and issues on determining the jurisdiction of such cases.The forth part focuses on the application of law in the case offoreign concurrence of liability for breach of contract and tortuousliability. On the basis of comparison of application of law between thecontract law and tort law, the author thinks that application of TheDoctrine of the Most Significant Relationship and the infiltration of TheDoctrine of Autonomy of the Will of Party in the field of tort law, willnarrow the gap between the result of dispute of concurrence of liabilitiestreated as dispute of contractual liability and the result of the disputetreated as dispute of tortuous liability. The author also indicates thateach country has its own way of determining the rule of conflict, whichmeans that the condition whether the injured party is able to choose theright of claim or not has great influence on the application of law in thecases.