Domestic Service Defects Judgment And Remedy For Breach Of Contract

Abstract:Disputes of domestic service defects is a type of legal dispute of domestic service contract.In this case,both judge the defects of domestic service and the legal remedy of it are important things need to be studied and solved.However,the research achievement of how to judge domestic service defects is rarely in the civil law academics, mostly involved in domestic service contract research.But especially the monograph is no relevant study.On the other hand, there are a lot of controversy in the judicial practice,which lack of a system of the issue.In this article, the author will research the issue systematically,define and classify the defects of domestic service.Based on the existing Civil Law and Contract Law,the author will discuss the judge standard of domestic service defects,analyze the constitute of responsibility for breach of contract and the way to responsible for it,which aiming to provide reference for legislation and judicial practice.There are three parts in the article,in addition to the introduction and the peroration.In the first part, the author will define the connotation of domestic service in the first place, and analyzes the inherent characteristic of domestic services, as the last service defect remedy selection basis. Subsequently, the historical origins of the domestic service concept of defect will be demonstrated, consider that domestic service defect is a form of civil behavior defects.And then the author focuses on the analysis of the definition and criterion for defect judgment between defect of thing and defect of civil action within the scope of the civil law,intent to define the connotation and denotation of the domestic service defects. Finally, the author will take the domestic service defects into different types,providing the foundation of the legal remedy in the third part.In the second part, the author will discuss how to judge the domestic service defects. Firstly, the author will discuss the theory of defect of service in service contract, providing the theory of reference for the definition of domestic service defect judgment standard. Secondly, the author simply analyze the situation of the domestic service defect judgment in Chinese judicial practice.Finally, the article focuses on the analysis of the specific factors which should be taken into account when we judge the domestic service defects in China.In the third part, the author will focus on study the liability for breach contract which because of the domestic service defects,and its remedy.Firstly,the author define the imputation principle and constitutive requirements of the liability for breach contract.With regard to the imputation principle,the author laid special stress on analysis the difference between domestic service and things corporeal, and the balance of interest protection between domestic service providers and consumer,this was concluded that principle of liability without fault wos still the reasonable choice.For the constitutive requirements of the liability for breach contract,the author discuss the four constitutive requirements of the liability for breach contract of domestic service defects based on the current contract law.Secondly, the author will elaborate the legal remedies for the liability for breach contract; study the constitutive requirements,the type of domestic service defect,and so on.Finally,the author will talk about the situation of coincide liability of torts and breach of contract under the domestic service defects.The author think that the consumer have the right to choose the type of liability as in the other type contract.The difference is that the consumer could ask for metal compensation caused by contract breach.