The Research On The Coexist Applicable Norm

The essay focuses on the application of laws when a legal fact may be resolvedthrough several norms, and this phenomenon is called ‘coexist applicable norm’ inthis essay. Injury performance is one of the most common causes of coexist applicablenorm, and the concurrence of the contract liability and the tort liability is the mostcommon phenomenon of coexist applicable norm. Therefore, the essay makes aresearch on how to apply the laws in coexistence of the liability of breach of contractand tortuous liability caused by injury performance.The first chapter of the essay is the summary of the legal consequence of injuryperformance and the relief methods of it in the legal system in our country. First of all,the loss of the executive interest and the inherent interest caused by injuryperformance in a purchase and sale contract is discussed through a case. Secondly,this chapter analyzes the relief ways in our legal system. After that, the article41ofthe tort law of People’s Republic of China is further discussed. According to thearticle, the creditor may achieve compensation of all losses, while it has several faultsincluding ignoring the difference between liability of breach of contract and tortuousliability, confusing the border of contract law and tort law as well as the limitation ofthe range of the article because it is only applicable to the products liability. Finally, itis considered that the concurrence of the laws of contract and tort is the phenomenonof coexist applicable norm, and shall be resolved by the concurrent liability system. The second chapter primarily explores coexist applicable norm and theconcurrent liability system. This chapter firstly summarizes the meaning and categoryof coexist applicable norm, which includes coexist applicable norm between the sameindividuals and between different persons. The coexist applicable norm betweendifferent persons involves four situations, totally different in legal aims, identical inlegal aims, crossed in legal aims and the legal aim of a legal norm covered by that ofthe others. The coexist applicable norm of different individuals may apply statuespursuant to its legal relationship respectively, and the coexist applicable norm whoselegal purposes are different also may use legal norms respectively to achieve legalpurposes, and there is no problem of application of laws in both situations aforesaid.Nevertheless, a series of rules shall be established to settle the application of laws inthe situations that legal aims of coexist laws which are same, crossed or covered.Therefore, the concurrent liability is a system, which is set forth to regulate theapplication of the laws whose legal purposes are same, crossed or covered as well ason the same legal level. Lastly, the concurrence of liability is compared with thesimilar institutions including liability polymerization, concurrence of execution ofnorms, unreal joint and several obligations in order to highlight its own characteristic.The third chapter focuses on the typical theories of the concurrent liabilitysystem. The doctrine of article concurrence considers that the contract law is thespecial law compared with the tort law, in that the usage of tort law is excluded. Thedoctrine of claim concurrence of which several rights are independent indicates thatcreditors may choose any of the rights and transfer all the rights together orrespectively. The doctrine of claim concurrence of which rights may affect each otherdeems that several rights could act upon each other. The doctrine of law-basisconcurrence indicates that only exists a claim of right, and the law-basis areconcurrent. Lastly, this chapter summarizes the mainly theories of subject matter ofaction, and clears that the theories of subject matter of action of the doctrine of claimconcurrence and the doctrine of law-basis concurrence respectively are originalsubstantive law theory and new substantive law theory. The forth chapter makes a research on the choice of the theory of concurrentliability in our country. Nowadays, the theory of concurrent liability system in ourcountry is the doctrine of claim concurrence of which several rights are independent.Otherwise, it exists several inherent defects, including causing pressure of lawsuits,making the special provisions in the law and the agreements of the partiesmeaningless and probably failure to achieve all the losses. Contract law of PRC andtort law of PRC are on the same legal level, in that there is no room for the doctrine ofarticle concurrence in our country. The subject matter theory of the doctrine oflaw-basis concurrence is new substantive law theory, and the subject matter theory ofour country is original substantive law theory, so that the doctrine of law-basisconcurrence is in inconformity to our national legal system. The doctrine of claimconcurrence of which rights may affect each other shall be the theory for theconcurrent liability system in our country because it could avoid defectsaforementioned. The effect of rights of claim of each other shall comply with a seriesof principles. The first principle is that the special rules shall be prior to the generalrules. The second principle is that all the losses shall be compensated. The thirdprinciple is that the agreement of parties shall be prior to legal norms exceptmandatory norms.