Study On The Remedy Of Injuring Performance

The traditional civil liability system is divided into two parts: The Liability of Tort and the Liability of Breach of Contract, the Tort law and the Contract law has its own scope of interest protection. There is one kind of forms of breach in our country: The debtor breaches the contract obligation caused damage to the inherent interest of creditor, we call it “injuring performance”. Injuring performance caused damages of the creditor’s inherent interest is the characteristics of this form, so it has the dual characteristics of breach of contract and tort. Under the common theory, we use the coincidence of civil liability theory to settle the remedy of injuring performance, but there is one problem, the creditor can’t get complete relief. If creditor choose filed a breach of contract lawsuit,He can’t get the inherent interest protection. So we need to discuss how to fully protect the creditor’s interests. How to settle the problems we come across when discuss the remedy of injuring performance.This paper includes three parts.The first part is talk about the summary of the injuring performance. Injuring performance is derived from Germany positive infringing obligation right. So we first introduce the background of this theory and its function in German Law. Simultaneously,our law system derivative the theory of Germany positive infringement and develop the injuring performance. So the first part also introduces the concept, types and constitutive requirement of this theory.The second part is about the remedy of injuring performance(Creditor’s claim right). So we should define the property of injuring performance. And the specific characteristics of the property lead to the dispute on the remedy of injuring performance. According with the common theory,the injuring performance applies to the coincidence of civil liability theory. But under the traditional civil liability system, the scope of protection between contract law and tort law is quite distinct from each other, and according to the coincidence of civil liability theory the creditor can only choose one claim, in this situation, the creditor’s damage can not get complete relief. And the coincidence of civil liability theory does not apply to all situations of injuring performance. This paper considers that we should put the inherent interest under the contract law protection scope. So we need talk about the legitimacy to put the inherent interest under the contract law protection scope.The third part is analysis of our country’s injuring performance system. The remedy path of our country’s injuring performance should be: If the injuring performance causes both inherent interest damage and performance interest damage, creditor can acquire the full relief according to the contract law. If the injuring performance causes inherent interest only, then apply to the liability concurrence theory, the creditor can choose one claim to suit.