Reconstruction Of The Civil Liability System In China

Since the Roman Law, the contract liability and tortious liability remains two pillars of the traditional civil liability system. The contract liability's premise is breaching the agreed duty, and the tortious liability is based on breaching the normal noticed legal duty. These two have different forming documents and legal consequences. They are entirely different on the duty. However, with the dealing relation in modern society becomes more and more complex, in order to complete rights and benefits of the party, the contract law and tort law all expand. Therefore, a batch of new type civil duties, they are formed of the pre-contract duty, the contractual collateral duty, the post-contract duty, and the safety-guard duty. The appearance of these civil duties, broken up the deep boundary of the traditional contact and tortious liability. The traditional "contract-delict" dichotomy civil liability is confronting with the theoretical and practical problems. This dissertation starts from this question and inquires into the reconsitution of the civil liability system.The first chapter gives a general explanation of the "contract-delict" dichotomy civil liability. This dissertation starts from the definition of the civil liability. discusses the theoretical basis and historical background of the dichotomy civil liability. This paves the way of the following discussion.The second chapter studies the expansion of the civil liability system in French and Germany in order to adapt to the modern social development. It points out the setback in the theory and practice of the traditional civil liability and provides good example on perfectly solving problems of the civil liability in our country.The third chapter analyses the dilemma that our current civil liability system is facing, especially on the part of conception and location of new type civil liability. They are differ from contract liability and tortious liability. It's difficult to find a precise location in the traditional dichotomy civil liability system. Therefore initiated a conceive that breaking the traditional civil liability system frame, searching solving thoughts of development space of new type civil liability beside the contract law and tort law. The forth chapter inquires into "contract-delict-protection" tripartite civil liability system. It discusses on the theory of "eineinheitliches Schutzpflichtverhaltnis"put forward by German scholar and raises obligation protection theory. In order to protect the lawful rights under the special intergartation relation, it tries to unify new type civil liability on the basis of the protective duty and sets up the protective liability which is different from the contract liability and tortious liability.The fifth chapter inquires into that whether reinstatement owns independent necessity as a concrete way of bearing civil liability. The earlier four chapters discuss the reconstructure of the current civil liability system in our country. The fifth chapter is the assumption about the futher consummate of civil liability system. It is discusses on the microcosmic point of view which is the concrete type of civil liability. Each concrete function of reinstatement can be beared by the right of claim for damages of creditor, the right of claim for absolute right and the claim for returning unjustified enrichment together. So it can't set up to regard reinstatement as an independent way of bearing civil liability. On the contrary, it should be the objective of the regulations. Correspondingly, compensation for damage would be the only way of bearing civil liability in our future civil law.