On The Contracting Fault Liability

The fault liability is originated from the Roman Law. In 1861, Jhering firstly proposed the concept of the theory. After more than a century, the theory has been widely recognized by many countries. And the same time the fault liability has become an importanat legal system in the legal system in the area of Civil Law. The proposition of the fault liability broke through the traditional theory of civil law-"no contract, no responsibility", and made up some gaps which were not regulated by legal law. It had a far-reaching impact on the legislative and judicial systems for the Continental Law countries and the Common Law countries.Althouth our new Contract Law has already made detailed stipulations on the Liability for Contracting Default, our legal syste is in the progressive development and improvement stage, which means that many of the specific legal system also in a gradual process of development. The fault liability regime is no exception, there are many needs refinement and iimprovement.This paper begins with the production and affection of fault liability. And researches shallowly the issues related to this theory. Decribes the theoretical basis of fault liability, such as the legal nature, the scope, the protected objects and the issue of compensation,etc; Analyses the existing legislation on fault liability in China. Puts forward some advise on how to improve our system of fault liability. Hopes to gain the academic guidance of predecessors and criticism.This article is divided into four parts.The first part introduces the the production of the theory, and the impact on the Continental Law countries and the Common Law countries.The second part discusses some issues related to the theory, including its concept, components, legal status. For the concept of fault liability, the scholars are not consistent with the definition, but its essence is the same. In addition, the author describes the elements of his own understanding to fault liability and discusses the major parties at fault and responsibility of the theoretical basis for legal status. Also pointing out it is an independent civil liability by comparing with the breach of contract and tort liability.The third part focuses on the scope of application and the compensation issues of the fault liability, including some cases for applying fault liability, such as the contract is not established, the contract is revoked and the contract is established but not goes into effect. Besides, the part also describes the scope of the compensations for fault liability. The fourth part analyses the sysetm of the fault liability in China and the existing legislation about it. Besides, put forward some recommondations on how to improve our fault liability legislation.