The Identification Of The Concurrence In Contract And Tort In Private International Law

With more and more frequent commercial intercourse in civil and commercial matters, the same actof the actor, due to different identification, it may comply with the nature of contract as well as the natureof the tort, the performance at the international level or with foreign elements that constitute theconcurrence of contract and tort in Private international law. With the deepening development ofinternational civil and commercial exchanges, more and more concurrence case would be happen, but thelaw corresponds to solving the problem of concurrence did not keep pace with it, that results in many casesare not properly protecting the legitimate rights and interests of the parties.As the identification of concurrence of contract and tort cases in Private international law, thelegislation of our country is to allow the plaintiff to make a choice, namely the concurrence was identifiedby the plaintiff, the advantage of this approach is to respect the private rights of the parties, but it would beunfavorable to protect the lawful rights and interests of the defendant, and may produce the phenomenon ofevasion of law. In this paper, by analyzing the qualitative with how to deal with the disciplinary right of theparties and the court battle over the priority of the four kinds of practice, and carries on the analysis ofadvantages and disadvantages, combined with the legislation and practice of our country, put forward somesuggestions. The author argues that, in the concurrence of tort and contract case, we can take thecooperation of respect the independent choice of the plaintiff, and the courts to measure according to thepower of the law. After the parties choose the nature of the case, the court must respect the choice of theparties. In the practice of our country there is a party without choice, or choose the fuzzy, in this case itshould identified by the judge.The full text in addition to the preface and epilogue, is divided into four parts:The first part, introduces the general applicable law concerning foreign affairs legal theory: what is thelegal nature of the competition in Private international law, the influence of identification, and the objectand subject of identification, etc.The second part, the paper introduce the practice of States when they met the proplem of concurrence,how to deal with the priority of the right of the party and the court over proplem of concurrence, there arefour kinds of practice: apply the law of contract by the legislation, identified by the parties, identified bythe court, allow the damage have limited choice of identification, and an analysis of the pros and cons ofeach approach one by one.The third part, first introduced the legislation of our country in concurrence of tort and contract, andanalyze it. Then illustrate the problems existing in the judicial practice in our country by cases.The fourth part, combined with our country’s legislation and practice, put forward some suggestions toour country to settle the problems in the concurrence of contract and tort: first respect the choice of theplaintiff, and the court should make identification when the plaintiff make no choice.