On The Protected Objects And Scope Of Compensation For Liability In Contracting Faults

The problem of contracting fault originated in Roman law period while it has not been systematically discussed by scholars until Jhering entitled "the contracting negligence:damage compensation when the contract is invalid" in 1861.It can be said that the problem of contracting fault was formed relatively late in the civil law.However,this system has far-reaching influence and is accepted by many civil law countries.Our country's system of contracting fault liability is inherited from the German law,but unfortunately,our country's succession of this system is not based on the integrity of our country's legal system------the legislation of this system is relatively rough.The provisions on this system are mainly found in article 42,article43 and article 58 of the contract law of the People's Republic of China(hereinafter referred to as the contract law).The content of these provisions is not complete,leading to a lot of controversy in the academic community on some issues.There are also many unexplained problem in the judicial trial.At present,there are some disputes on the following issues in Chinese academic circles:(1)whether liability for contracting negligence is the third form of liability independent of tort liability and liability for breach of contract;(2)its object of protection is limited to trust interest or includes inherent interest;(3)whether the compensation of reliance interest includes opportunity loss and whether it should be limited to performance interest.I think that can the liability the system for contracting negligence can be applied better when theabove problems be solved.This paper will discuss the object of protection and the scope of damages for contracting negligence on the basis of comparative law research,China's legislation and judicial practice.This paper is divided into three chapters.The first chapter mainly discusses the nature,the system of legislative norms and the judicial practice of contracting fault liability.In China,the liability system for contracting negligence is to a large extent inherited the German law,and the provisions of this system are relatively vague and incomplete.So this chapter firstly demonstrate the the independence of contracting negligence liability by differentiating the independent liability theory and tort liability theory from the perspective of the application of law.Secondly,sorting out the standard system of contracting fault liability to clarify the basic legal provisions.Finally,this paper analyzes the controversial points in the judicial practice of the protection object and damage compensation of contracting negligence liability on the basis of collecting various typical cases to lay a foundation for the following specific analysis.The second chapter mainly discusses the protection object of liability for negligence in contracting.The first section introduces the current controversial theories about the object of protection and the extraterritorial legislation.Second quarter discusses whether inherent interests belongs to the contracting fault liability protection objects and clears out that the system of German law on the contracting negligence adjust the inherent benefit because Germany tort law has some defects while our country's tort law does not exist the flaws of the tort law in Germany.Besides applying the contracting fault responsibility to protect inherent interest is not better than that of tort liability law protection,so there's no need to include intrinsic interest in the protection object of contracting fault liability.The third chapter mainly discusses the scope and limitation of the compensation for the trust interest,which indicates that there is no dispute in our country about whether the trust interest can be compensated.Then expounds whether the compensation for the trust interest includes the opportunity loss,and thinks that the opportunity loss can be compensated.Since there is no specific standard for the determination and calculation of contracting opportunity loss,it discusses the problemon the basis of the foregoing.At the same time,the chapter analyzes whether the compensation for the trust interest should make the performance interest as the upper limit based on the investigation to the different theories of extraterritorial legislation.I think whether the reliance interest compensation should be within the limit of the performance interest depends on the extent of the fault of the guilty party.