The Negativism Of Coincidence Of Liability For Breach Of Contract And Tort Liability

The liability for breach of contract and tort liability are the two basic classifications ofthe civil liability in the continental law system. Concurrence of the civil liabilities is theproduct of the continuously detailed and systematic classification of civil liabilities, and theconcurrence of the liability for breach of contract and tort liability is the most common form.Since the distinction of the liability for breach of contract and tort liability produced, nomatter recognized and found or not, the concurrence of the liability for breach of contract andtort liability already exists objectively. With the development of society, especially the rapiddevelopment of science and technology, life facts naturally produce the crossing of the legallogical classification, and it is the logical crossing that results in the concurrence of civilliabilities, especially the concurrence of the liability for breach of contract and tort liability.However, is the academic world’s common view on the concurrence of the liability for breachof contract and tort liability right? And the problem hidden under the concurrence is really thesame as it seems? Through the study concurrence theory of the liability for breach of contractand tort liability and legislations of countries, we find that it’s not like what the people havelearned now, perhaps the concurrence theory of the liability for breach of contract and tortliability is not supposed to be a true proposition, or the problems involved in the concurrencetheory of the liability for breach of contract and tort liability is probably not exist. In view ofthis, with "bold assumption, caution proof" scientific spirit, we do some analysis ofconcurrence problems of the liability for breach of contract and tort responsibility, directly tofind defects of the liability concurrence theory in the treatment of the so-called concurrenceproblems, and then analyze the reasons of the defects, perhaps the current inertiaunderstanding will have another sort of vision.This paper mainly adopts the method of logic comparative analysis study and empiricaldeductive reasoning. In addition to the preface, the paper is divided into four chapters, thirtythousand words and so.The first chapter, outline. It defines and differentiates the concepts of liability for breachof contract, tort liability and the concurrence, and fatherly analyses and compares liabilityconcurrence, the issues concurrence together with the responsibility cooperation, in order tomake a simple account for the topic concept this paper tries to explore. The second chapter, analysis of the defects and its reasons of the concurrence theory ofliability for breach of contract and tort liability. It puts forward to current concurrence theoryabout solving the problems of liability for breach of contract and tort liability and makes briefintroduction in the first part of the chapter, and analyzes defects in dealing with concurrenceproblems; It analyses the defects of the concurrence theory in dealing with the concurrenceproblems and the causes of the defects, then finds out the key point of the problems in thesecond part.The third chapter, negation of the concurrence——the benefit patterns analysis of thecompetition between the liability for breach of contract and tort liability. This part, firstlymainly analyses the differences between the specific interests protected by the liability forbreach of contract and tort responsibility, that differences between the ways of liabilities, thenwe can infer the distinctions between the benefits pattern arrangement. Based on the analysisof the difference of the concurrence interests arrangement, we put the benefit patternarrangement of concurrence into four big categories (six small categories), and make theempirical analysis one by one, and point out that the concurrence problems packaged in thetheory of liability concurrence actually are not so-called concurrence problems, or at best,only a kind of guess and imagination of the jurists’ rigid logic deduction.The fourth chapter, the solution to the problem——the legislation design of theconcurrence of the liability for breach of contract and tort liability. The first part is the basiclegal theories of the legislation. The second part is the specific legislation design and theinterpretation of application.