Study On Issues Of Contracting Fault Liability

The contracting fault liability originated from Roman law, it was firstly putforward by German famous jurist Jhering in1861. It overturns the absolute contractliability theory of "no contract, no responsibility", expands the scope of applicationfor contract responsibility and is gradually adopted by various countries forlegislation and legal precedents. Both continental law countries and Anglo-Americanlaw countries are influenced by this theory to varying degrees, and it is graduallysystematized with the continuous’ development of legislation and legal precedents.However, the contracting fault liability theory is still academically controversial. Withthe motivation of perfect our civil liability system, in this paper, some theoryproblems of the contracting fault liability are discussed, supplemented by judicialprecedents.The first part discusses the historical origin and legal basis of the contractingfault liability. This part goes back to Roman law, elaborated the emergence of thecontracting fault liability and the development of the two law systems; and finallyestablished the principle of good faith for the legal basis of the contracting faultliability through systematic analysis of the relevant theories. The second part discusses the concept, legal characteristics and constitutiverequirements of contracting fault liability. By synthesize several scholars’ point ofview, the contracting fault liability is expressed as: the civil liability that thecontracting people has to bear while in the process of conclusion of the contract, thecontracting people has first contractual obligations for intentional or negligentviolation in accordance with the principle of good faith, which causes damage to thecontracting counterpart. On this basis, the characteristics of the laws of thecontracting fault liability is analysed in detail; and by comprehensive comprehensionon the basis of numerous theories, the paper expounds the author’s standpoint-fourelements theory.The third part discusses the applicable scope of the contracting fault liability.This part respectively analysis from the time and space effectiveness range of thecontracting fault liability, and lead to the latest applicable academic point of view forconditional contract and lack of approval or registration contract.The fourth part discusses the compensation for damages caused by contractingfault liability for damages. This part discusses respectively from the contracting faultliability protection object, scope of compensation and compensation principles,through analysis of the different academic views and the relevant legislation, it is concluded that the contracting fault liability protection object including inherentinterests and trust interests; and also specifically analysed the scope of compensationand compensation limit, on this basis the of this compensation principle of thecontracting fault liability is expounded.The fifth part discusses the competition and cooperation of the contracting faultliability and liability for breach of contract and tort liability. This part respectivelyanalysis the liability from its produce, nature, liability form, imputation principleaspects, designed to avoid confusion of contracting fault liability and liability forbreach of contract.