A Research On The Application Standard Of Fault Liability In Liability For Breach Of Contract

Article 107 of the Contract Law stipulates that the doctrine of liability fixation for breach of the contract is the principle of strict liability,while the sub-rule also stipulates some exceptions for the application of fault liability.There are controversies in both the doctrine and judicial practice as to which circumstances apply the fault liability.The reason for these disputes can be attributed to the ambiguity of the application of fault liability standards in breach of contract liability.Only by clarifying which provisions apply the fault liability,can we further explore whether the fault liability provisions follow certain standards.The determination of the fault liability provisions are different from the fault determination criteria.The fault liability provisions are an objective existence of legislative products.It is determined that the interpretation of the Law Commission and the Supreme People's Court should be combined with the legislative information to explore the true meaning and purpose of the legislator in formulating the provisions from the perspective of interpretation.It has been determined that there are a total of 50 provisions for the application of fault liability in the the Contract Law and judicial interpretation of the named contract,and most of these provisions contain expressions that emphasize fault in the meaning of the text.In terms of the meaning of the text,from the form of fault emphasizing,such expressions as "fault","liability attribution","intention" and "negligence" can enable people to directly associate these expressions with fault liability.While others do not have fault identification but have the expression with fault meaning,such as "without justified reasons",can not directly lead people to the basis of fault liability.Therefore,according to whether or not it is recognized as a mark of fault liability,the fault expressions can be classified into "fault mark" and "other expressions that emphasize fault".In the Contract Law and the judicial interpretation of named contracts,other expressions that emphasize fault include " without the consent"," without authorization","no timely","being slack","without justified reasons","bad custody" "due to the debtor's reasons" In this regard,many scholars believe that "other expressions that emphasize fault" are also marked by fault attribution.Judging from the entire Contract Law and the judicial interpretation of named contracts,legislators sometimes use these expressions deliberately to indicate fault attribution,but sometimes they are also used in terms of strict liability.It can be seen that the legislator's use of "other expressions that emphasize fault" is arbitrary.This also shows that the legislator did not stipulate fault liability solely by means of the text.In fact,some of the provisions that do not contain the "fault mark" apply the fault liability,which is largely related to the type of contract and the nature of the obligation.From the perspective of contract type,the provisions applicable to fault liability mainly relate to naked contracts and the service contracts in onerous contracts.In theory,some scholars believe that breaching of obligations under naked contracts and service contracts shall be subject to fault liability.This is because: the burden of the benefit-paying party in the naked contract is much more than that of the profit-seeking party.In order to balance the interests of the two parties,it is necessary to reduce the responsibility of the paying-stakeholder,so that it can assume responsibility only in the case of subjective fault.In the service contract,the service is embodied in the process and does not guarantee the result.Therefore,it pays more attention to the fulfillment of the duty of care of the service provider.Although the provisions on the application of fault liability generally involve naked contracts and service contracts,from the overall provisions of the Contract Law and the judicial interpretation of named contracts,the terms relating to naked contracts and service contracts are not all applicable to fault liability.In particular,most of the provisions concerning service contracts are still based on no fault.This means that our legislators do not distinguish the types of contracts applicable to fault liability.The reason why the fault liability provisions mainly involve naked contracts and service contracts can be attributed to the consideration of fairness and the nature of the obligations under the contract type.In other words,the type of contract is not the main factor determining the criteria of attribution.Therefore,the standard that scholars advocate to distinguish the types of contract applicable to fault liability is not applicable from the perspective of interpretation.From the perspective of the nature of the obligation,the provisions applying the fault liability mainly involve Obligation de Moyens.According to the principle of the Obligation Dichotomy of comparative law,the violation of Obligation de Moyens should apply the fault liability.Judging from the current status of Contract Law and judicial interpretation of the named contract,the violation of Obligation de Moyens does apply the fault liability generally,and only in the provisions concerning the obligation of assistance and the obligation to protect,there are exceptions to apply strict liability.This shows that the violation of Obligation de Moyens can be equated with the application of fault liability generally.Judging from the history of the formulation of the Contract Law,the attribution criteria for breach of contract is mainly based on the results of international conventions,such as "Principles of International Commercial Contracts" and "The Principles of European Contract Law"."Principles of International Commercial Contracts" and "The Principles of European Contract Law" have adopted the principle of the Obligation Dichotomy in the application of different imputation principles.In view of these,combined with the legislative status of fault attribution and the positive reference of the legislators to international conventions,there is reason to believe that Chinese legislators also apply the fault liability by distinguishing the nature of the obligation,and violation of Obligation de Moyens should be blamed in fault in principle.