Injuring Study

Injuring performance is one manifestation of the extension of contract law system which exists between both parties to a contract. It means the debtor's inconsistent performance of a contract with the original purpose of contract will damage the creditor's performance interest and inherent interest. According to the dual division system of traditional civil liability, both kinds of the interest are protected respectively by contract law and tort law, but the complexity of social life makes it impossible to implement the dual division system of traditional civil liability thoroughly. Under the condition of injuring performance, in order to strengthen the protection of the creditor's interest, the general attention duty in tort law is integrated into the protection of the individual attention duty in contract law, namely the inherent interest is integrated into the protection of contract law . The protection of inherent interest is considered to be the basic function of injuring performance. The theory of injuring performance makes the theory of liabilities' concurrence more possible and also promotes its development. Our country complies with this trend of development, studies international advanced experience, and begins to be clearer in attitude toward injuring performance in the judicature and the legislation. But in the scientific theory, it is necessary to make the following points clearer, constructive requirements and legal consequence of injuring performance, the using of liabilities' concurrence, and the correlation between product liability and injuring performance.This article sorts out the causes of the theory of positive infringement upon creditor's rights and incomplete fulfillment system through methods of historical research and comparison. It makes clear the standard basis and definition of injuring performance, and illustrates the different situations of the application of liabilities' concurrence in injuring performance through case study. It aims to restore the original role of the theory of liabilities' concurrence in injuring performance, truly put the loss of the creditor's inherent interest under the protection of contract law, let the injuring performance system play its proper guideline role, and give the injured party adequate allowances. This paper is divided into four parts. There are more than 30000 Chinese characters except the introduction and the conclusion.The first part introduces the putting forward and development of injuring performance. Injuring performance derives from Germany, thus this part firstly introduces the cause, the developing process, and the destiny of the theory of positive infringement upon creditor's rights. Then it introduces Taiwan District's incomplete fulfillment system.The second part talks about the system of injuring performance in Chinese mainland. This part sums up the constructive requirement of injuring performance through analyzing its standard basis, definition, and status in Chinese civil law system. The constructive requirements are as follows: legal contract between creditors and debtors, detor's performance inconsistent with the contract damages creditor's inherent interest and the debtor has fault.The third part discusses the legal consequence of injuring performance based on liabilities' concurrence and mental damages. Through the analysis of three theories of liabilities' concurrence, the author holds that there is misunderstanding in the application of injuring performance in judicature practice. The debtor liabilities' concurrence in Article 122 of the "Law of contract" only refers to the concurrence of debtor's inherent interest, but not the concurrence of all of the creditor's liabilities. This part also holds that the creditor has right to put in a claim for mental damages.The fourth part deals with two systems associated with injuring performance, such as products liability, the contract with an additional function to protect the third party, and the relationship between them.