| Liability for breach of contract and tort liability boundary points means meticulous, the protection of the civil law of the creditor’s internal architecture and external effects gradually getting better. However, being the fulfillment of the debt, the benefits do not meet the original purpose of the debt-the quality of the method, time, place, and even was flawed, and even lead to personal and property rights of the creditors have suffered damage, and how to protect debt smooth performance, better rights suffered not the interests of risk reduction needs to Ming analysis. On these issues, civil law countries, civil law scholars generally regarded as a separate payment obstacles morphology regulation, German civil law system actively infringement claims, Japanese civil law theory does not completely fulfill the system in Taiwan, China China Law reasonable not fully benefit system. And common law countries placed the damage foresee the possibility of problems under discussion, the independent type provisions is not abstract, but in the precedents being affirmed.Macroeconomic framework of the default system, China’s legislative status quo based on section107of the Contract Law "does not fulfill its contractual obligations","to fulfill contractual obligations does not comply with the provisions of this second category for breach of contract system the core classified."To fulfill contractual obligations do not meet requirements" solution to the problem seems to have provided by Section122of the Contract Law expressly-the so-called the incomplete performance problems, choose a selection to solve path between liability for breach of contract and tort liability; but will request Concurrence import in which the ability to help maximize the benefits of how to select the program, a rather confused.Losses repayment complete basic course is characterized by non-destructive state thoroughly reversion, but whether it is the adoption of a simple breach of contract program or take a single means of Tort will return lossless state probability greatly discounted. In fact, no "one size fits all" type of approach are all packet layer couverture bitter medicine, preferred interest rates ended the controversial program should establish clear jeopardize the interests of the state above the basic premise of "fixed points"-in clarifying fulfill polymerization Concurrence and claims to claims the damage situation of the interests and the vested interest of the two kinds of relief patterns. In detail, to fulfill the interests and inherent interests were impaired occasions, to request the right to polymerization of relief; situation only damage inherent benefits, only on Concurrence applicable.Talking about from the perspective of the general principles of the law of obligations still need to get into the points system build specific systems architecture supportive Quan said. Not completely fulfill nameless contract already quite detailed background to the study, the famous contract provides both the service contract law applicable to the general rule, but also has the characteristics of certain "material transaction" contract better certainty exemplified not completely fulfill the specific mechanism of the theory under the laws of our country. The basic structure of the contract, it does not completely fulfill should include the contractor does not fully fulfill the ordering is not completely fulfill. Where the main benefit obligation is to pay compensation, the hirer may have not completely fulfill the scenario:the need to go to the place of its preparation, the contractor to perform the contract premises the hirer to prepare poor safety hazards, so that The contractor suffered the loss of vested interest in the performance of the contract. Thus, the hirer does not completely fulfill the form is simple and straightforward. Therefore, the paper selected the contract of hired contractor does not completely fulfill the study contractor expressly does not completely fulfill the connotation and denotation, combined with related cases combing the contractor is not completely fulfill the specific type, responsibility for regulation and relief mode.Breach of contract system in China’s Contract Law "does not fulfill its contractual obligations" and "fulfill contractual obligations does not comply with the provisions of the two forms constructed from the system point of view, the type of liability for breach of civil law provisions loopholes case. Discussed below, the contractor is not completely fulfill this form belongs to fulfill contractual obligations do not meet requirements ". More mature at this stage of incomplete performance, many scholars are not completely fulfill the behavior leading to damage of inherent interest called Injuring, depth and detailed discussion from the point of view of the general provisions of the General Civil Code."The provisions of Article122of the Contract Law", due to a party’s breach, infringement of personal and property rights and interests of the other party, the victim shall have the right to choose liable for breach or in accordance with other provisions of law to assume the tort liability under this Act requests. That is, the contractor does not fully fulfill the inherent interest of the hirer damage, you can request for relief based on contract law. The hiree incomplete performance will result in liability for breach of contract and tort liability competing, the hirer can choose their most favorable way to claim damages under specific circumstances..Of course, the problem does not completely fulfill the need Points of discussion, simply does not exist in some cases, the responsibility of the competing issues. While in theory these controversies, it must be admitted will result in creditors (in this paper, the hirer) inherent interests prejudice to the contract to fulfill the behavior is either filed a breach of contract complaint they may file an infringement complaint. In addition, in the context of our current system, the contractor is not completely fulfill, it seems that the interests of the hirer can not achieve full protection, which is also a controversial one of the causes. In detail in terms of China’s "Contract Law" Section262provides that the contractor delivers the results of the work required to comply with the quality requirements, do not meet the requirements to undertake repair, remaking, reducing the reward, compensation for damages and breach of contract. Scholars understood as this article is the responsibility of the contractor’s warranty. The hiree custody obligations is provided for in section265of the Contract Law, is damaged or lost, shall be liable for damages caused due to improper care. Provided for in section266of the Contract Law of the confidentiality obligations of the contractor. Therefore, China’s "Contract Law" breach of the warranty obligations of the contractor, safekeeping, confidentiality obligations behavior do not completely fulfill clearly defined.Firstly, the relevant judicial cases to divide our contractor is not completely fulfill the type, the main contractor in violation of the main contractual obligations not completely fulfill, as well as the contractor does not completely fulfill the breach of the obligation to protect. Discuss the delivery of the circumstances, the results of the work does not comply with the contract the contractor is in violation of the main contractual obligations under incomplete performance, and delivers the work does not meet the factors outside the contract, as well as the process of providing services do not meet the requirements of the occasion. Discussed under the contractor in violation of the obligation to protect, not completely fulfill the contractor is in violation of the custody of obligations, the contractor for breach of confidentiality obligations as well as subcontractor to violate other protection obligations. Since the contractor is not completely fulfill the breach of contract law on the obligations on the one hand and, on the other hand is also a violation of the obligations on tort either be subject to liability for breach of contract on the contract law can also make it to bear on the tort of infringement responsibility. When the mere existence of a wrongful act under the premise of the relationship between the two kinds of responsibility, quite value considerations. On non-competing relationship between liability and tort liability, civil law doctrinal three theories:First, Coincidence of Articles on Concurrence right to regulate the competing. Three types of doctrine can not be completely balance between the interests of the parties. Responsibility competing theory does not completely fulfill in order to solve the case of incomplete relief of the injured party, and scholars polymerization responsibility applies. Although the responsibility of polymerization can be the greatest degree of protection contractor does not fully perform under the hirer’s interests. This can be described as a strong challenge to the fundamental principles in the civil action-give a rationale. With the national legislation of these theories trial practice as the warranty responsibility:on the one hand, the establishment of an independent contractor, on the other hand to support the spirit of damages in the hirer’s breach of contract lawsuit. However, although aware of the traditional legislative models in China may be a result of the ordering injustice, allows the hirer of the contractor does not completely fulfill either filed a breach of contract complaint can also be filed infringement claims. In the contract the contract, the hirer to fulfill the interests of the losses by lifting the defaulting v. are generally easy to obtain compensation. The ordering party may request the contractor by the reduction in remuneration, repair, compensation for losses, to terminate the contract to make up for the loss of performance of the interests. The contractor is not completely fulfill the inherent interest damage caused by the hirer, and under what circumstances incomplete performance of the contractor filed a breach of contract lawsuit, mental loss is in any case not be compensated. Because our liability for breach of the scope of compensation does not include moral damages. Also limits a lot of damage compensation for the vested interests and breach of contract lawsuit. Therefore, China’s macro-legislative environment following types of contractor incomplete performance, breach of contract lawsuit and infringement action does not seem to separate the two compete. Hirer according to the careful choice of the specific circumstances of the case, in order to better protect their rights and interests. To sort out the contractor is not completely fulfill the theory related cases in our judicial practice, the contractor is not completely fulfill divided into the results of the work of the contractor delivers quality problems and quality problems caused by the inherent interest in the damage of the hirer the contractor in the course of performance of the contract due to the breach of the obligation to protect the hirer damaging two types of vested interests, respectively, to explore appropriate relief mode of this two cases.This article first contractor not completely fulfill combing the road in the countries, problems encountered and resolved mode. Then focus on the analysis of the contractor is not completely fulfill the hirer’s unfair in our traditional legislative mode. Combined with practice cases and further confirms our current while allowing the hirer of the contractor does not completely fulfill either filed the complaint for breach of contract also may file an infringement action. The ordering to perform the loss of benefits through the institution of a breach of contract lawsuit are generally easy to obtain compensation. The ordering party may request the contractor by the reduction in remuneration, repair, compensation for losses, to terminate the contract to make up for the loss of performance of the interests. But the contractor is not entirely fulfill the inherent interest damage caused by the hirer, no matter under what circumstances, the contractor does not completely fulfill this missing complaint filed breach of contract, moral damages is in any case not be compensated. Finally, the contractor is not completely fulfill the relatively reasonable relief mode. |
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