Co-opetition About Liability For Breach Of Contract And Tortious Liability

The arguments of liability for breach of contract and liability for tort were highly concerned. Scholars in many countries were committing to build an authoritative theory and solution, but none of them can cover all the situations, and a standard response never be built. This essay starts with the basic concept of the co-operation of liability for breach of contract and liability for tort, then gets acquaintance of the ready achievements through the analysis of the factor,provides the author’s opinion on this issue, which is to build up a co-competition rule under which all parties are closely inter-connected instead of forcing partied to make preferential decision.Thus, all the parties’benefits are protected and balanced.The first part is to introduce some basic concepts in the co-competition of liability for breach of contract and liability of tort, and the components of the competition, in order to have an accurate understanding of these concepts.Among them, the co-operation means rushed to gather, rushed to combine". It includes double duty, the identity wrongful act, complex object of crime, and identity pay content. San Tong is the five factors of identity main body, identity wrongful act, and identity pay content.The second part stated the main theories involving the co-competition of liability for breach of contract and liability of tort, for example, law co-competition theory, claim co-competition theory, claim."special law applicable priorities the common law" is the theoretical basis of "Gesetzkonkurrenz", considering that breach is special obligation caused by the violation of the contract and generation, infringement act violates general obligation of the rights of others shall not be infringed, breach namely violation of creditor’s right claims as a kind of special form and shall priorities in application;" Anspruchskonkurrenz " thinks that debts caused by the violation of contract law and tort law shouldn’t be performed. Abwehranspruch and infringement claim for damages are the two rights of claim can coexist independently, the right holder may choose requirements for any taxpayer a duty to remedy their own interests, also can ask agent undertake the two kinds of responsibilities. Along with evolution, it can be divided into claim free competition and claim to the mutual influence said two theories;"Claim standard competition said" is mainly refers to a legal fact cause responsibility of breach and tort liability, for all to damage compensation for its content of the claim, they generate a breach and a tort claim for the unity of the two properties, but this claim was established in two legal basis. In addition, the problem of countries of the processing mode for exploration,specification theory. In the meanwhile,to analyze the practical ways to deal with the two parties, which offers a feasible way for our law in the following paragraph.The third part lists the situations, under which some typical liability for breach of contract and liability for tort, such as the harm of defects payment, the violation of the accompanying obligation and the violation of protecting of obligations. These typical types nearly cover the area of the liability concurrence.The forth part discussed how scholars and judicial practice handle this issue in Taiwan and mainland. Taking advantage of others, this assay is aiming at building a rational of claim influences and a system of duty co-competition in principle based on the national conditions. This goal is to balance the benefits of all partied, including social benefits and benefits of the accusers and the respondents.