Study On The Legal Remedy Of Injuring Performance

The rule of injuring performance initially comes from the legal theory which was raised by German scholars, and it is called "the greatest creation of jurisprudence". Because the liability from breaching of contract is not properly performed, injuring performance not only causes the loss of performing benefit, but intrinsic benefit. Thus, it has the legal nature of both tort and default. Currently, because private interests are superior to public interests, and jus publicum continuously interferes with jus privatum, the expansion of contract law makes the boundary between the law of infringement and the law of contract becomes more and more ambiguous. As a marginal question of both responsibility from tort and responsibility from default, how to stipulate injuring performance in contract act is a raising issue for many countries, and it is also very controversial in practice.In China, on the basis of traditional civil law theory and jadiciul practice, the legal remedy for victims of tortious fulfillment is adopted the pattern of liability concurrence. The victim is only allowed to claim either infringement or breach of contract against the infringer. In principle, the claim of mental damage which is caused by injuring performance cannot be sued through breach of contract. Moreover, except for performance interests, other inherent interests can only be compensated through the suit of tort. In the meantime, in China, in terms of legal remedy where third person as a victim of injuring performance, or where the injuring performance is taken by third person, the stipulation and the jadiciul practice is not impeccable. Thus, the purpose of this essay is to clarify the relevant theories as well as the regime of injuring performance, and to offer perfect reliefs to the sufferers.Starting from the origin and the evolution of tortious fulfillment, this essay discusses the original intention of injuring performance, and in order to form the overall understanding of tortious fulfillment, this essay introduces the concept, types and key components of tortious fulfillment systematically. In addition, the core of the rest of this essay is legal remedy of injuring performance. By introducing Chinese tradition and legal practice of injuring performance, this essay points out the weakness of legal remedies under old system, and digs out the reasons behind it. After raising up and analysing the issue, kept a foothold on the social background of our country, summing up the opinions of scholars and learning from other countries' experiences purposely, this essay has three superficial suggestions on how to complete the legal remedies for victims of injuring performance. I wish my suggestions could benefit to the establishment and perfection the legal system in the future.