An Empirical Study On The Concurrence Of Liability For Breach Of Contract And Tort Liability

With the development of the society,the social life is getting increasingly complicated.The two-way expansion of contract law and tort law has made the concurrence of a breach of contract and a tort,common in law cases.According to the right to choose a request in the "General principles of civil law "article 186th",obligee could choose whether his legal behavior is in accordance with the contract law or the tort law,which would accordingly lead to different consequences.This thesis has surveyed related researches from different schools,both domestically and internationally,and then it has compared and analyzed the different opinions from those previous works.There are three models regarding with the concurrence of a breach of contract and a tort,which are forbidden concurrence model,restricted concurrence model and allowed concurrence model.Among them,the allowed concurrence model is applied to our country.Based on this,the author has collected 300 cases related to the concurrence of a breach of contract and a tort,from the high court and the Supreme Court.The cases are categorized into personal injury,property damage and personal and property damage.By analyzing the cases,we found that there are several problems in China's judicial practice of liability concurrence.such as it supports the litigant to change the claim in second instance.Or the infringer and the defaulting party are not the same one.When a litigant initiates the legal proceedings,limitation of action,constitutive requirements of liability and extent of compensation should be concerned in the concurrence issues.From the perspective of legal hermeneutics,in order to solve the concurrence of liability for breach contract and tort liability,the scope of compensation for breach of contract should be expanded,which should include the moral damage.Alternative claim should be interpreted as that the litigant can change the claims on appeal if did not receive damages in the first trial.Therefore from the perspective of legal creation,the liability concurrence should be restricted.The travel contract,the lease contract,the contract for the purpose of pleasure and the contract of breach of contract damages should be stipulated by the parties only allow the parties to claim the liability for breach of contract;the medical contract,the sales contract and the transportation contract should only allow the parties to claim tort liability.Other contracts that are not typical or complex contracts are allowed to choose one liability between them.Restriction concurrence can save the litigation costs.It can also balance the rights and obligations of both parties.Moreover it will be easier to operate and more transparent in judicial practice than now.