On The Injuring Relief

As a typical tortious action of default,Tortious fulfillment comes from people who has contractual relationship.It makes the victim lose his inherent benefits meanwhile losing fulfillment benefits because of injurer breaking contract.But according to traditional civil law theory,default liability and tortious liability separate clearly.The victim can claim the breaching compensation according to the contract;in the other hand,he can claim the tortious compensation under the tort law.According to traditional coincidence of liability,however,the victim can only claim one of them.That makes him be compelled to abandon part of his benefits.If allow the victim to claim default liability and tortious liability separately,it will aggravate injurer's burden.It is the confusion that Tortious fulfillment creates to the traditional civil law theory.This article is divided into three parts.The first part expurgates the definition,the requirements and the legal consequences through reviewing the history and unifying general doctrine with academic circles of Tortious fulfillment.From Germany,Taiwan area to China land area,this theory has the different connotation and controversy. Taking the three essences,however,we can find out this thoery central contents which is fulfillment benefits and inherent benefits being infringed by the same fulfillment.This is the definition of Tortious fulfillment in this article. It requires the following elements:Ⅰ,injurer's fulfillment itself does not conform to the contract agreement;ⅱ,the identical fulfillment has violated victim's inherent benefits;iii,the causality does exist.Its legal consequence is the coincidence of tortious liability and default liability.The second part evaluates the traditional civil law remedy theories of Tortious fulfillment.All of them have their own advantages,but far from perfect.They are unable to balance party's benefits.Strict separation between default liability and tortious liability is the fundamental reason.The third part is emphasis.The author thought that essence of law lies in balancing the benefits between the both parties and social benefits.Since the biggest barrier of solving Tortious fulfillment is strict separation of default liability and tortious liability,it is reasonable to make the moderate breakthrough to the traditional civil law theory and seek moderate blend of two liabilities.Moreover,the theory barrier also can be overcomed one by one. The author thought that can solve the numerous disputes and puzzles properlily by introducing mental suffering into contractual remedy,and also sufficiently justifies oneself theoretically.