The Application Of The Rule Of Negligence In The Field Of Liability For Breach Of Contract

At present,there is still room for further discussion on the application of the rule of fault offset in the field of contract law in the theoretical circles of our country.Starting from the general theory of the rule of negligence offset,this paper points out the problems existing in the application of the rule of negligence offset in China's judicial practice on the basis of the analysis of the controversy on the application of the rule of negligence offset in the theoretical circles,and finally puts forward some suggestions for perfecting the application of the rule of negligence offset in the field of contract law,especially in the field of liability for breach of contract.In addition to the "introduction" and "conclusion",the full text is divided into four parts.The first part is the general theory of contributory negligence rule.This part points out that the establishment of the rule of fault offset is closely related to the development of society and the judgment and choice of legal value in different periods of social development.The rule of negligence offset is a legal system which relies on the extent of the victim's fault to mitigate or exempt the victim from liability for damages within the extended scope of the damages or damages caused by the victim.When discussing its constituent elements,we should not only pay attention to the constitution of the tort liability of the offender,but also consider the constitution of the liability of the victim when he has to bear the responsibility,and determine the distribution of the liability by analyzing the constitution of the liability of the two.The second part elaborates the main problems of the application of the rule of fault offset in the field of contract law.This part first raises the main theoretical issues of the application of the rule of negligence offset in contract law.Secondly,by sorting out the different views of domestic scholars on whether the rule of negligence offset can be applied to the field of liability for breach of contract in theory,it points out that the rule of negligence offset embodies the principles of fairness and justice in civil law on the basis of summarizing various views.Combining with the newly published Draft Codes of Civil Code in September 2018 and January 2019 and the Draft Subsections of Civil Code(Draft Second Review),it is pointed out that it is necessary to combine the derogation rule,breach of contract by both parties and the rule of offset of negligence to solve the problem of liability for breach of contract.Furthermore,it is further clarified that the rule of negligence offset is not explicitly stipulated in our contract law as a "legal loophole" which needs to be filled.The third part is to discuss the application of the rule of fault offset in the field of contract disputes and the existing problems in our judicial practice.This part combs and summarizes the application of the rule of negligence offset in various contract disputes in the field of judicial practice in China,and expounds the practical application of the rule in judicial practice and the development process of specific settlement of legal disputes before and after the promulgation of the Interpretation of the Supreme People's Court on the Application of Law in Trial of Disputes over Sale Contracts(2012).At the same time,combined with the provisions of Article 174 of the Contract Law of our country and Article 10 of the Supreme People's Court's Guiding Opinion on Several Questions in Trial of Civil and Commercial Contract Disputes Cases under the Current Situation,this paper makes an analysis of the application of the rule of fault offset to solve contract disputes in judicial practice.This part points out that there are some prominent problems in our country's judicial practice:the absence of the rule of negligence offset in the Contract Law makes it difficult to solve various complex problems in judicial practice,and this situation is difficult to guarantee the realization of judicial justice;The lack of clear scope of application of the rule of fault offset in the field of contract law raises doubts as to whether the rule of fault offset can be applied under the strict liability imputation mode;the absence of the applicable elements of the rule of fault offset in the field of liability for breach of contract leads to the lack of clear guidance and uncertainty in the application of the rule of fault offset in the field of contract law.The fourth part puts forward four suggestions on the legislation and application of the rule of negligence offset.Firstly,it is suggested that the rule of negligence offset should be clearly stipulated in the Contract Law,that the rule of negligence offset should be stipulated in the General Provisions of the Contract Law,and that the rule of negligence offset should be applied in unpaid contracts.Secondly,it clarifies the scope of application of the rule of fault offset in the field of contract law,puts forward that the rule of fault offset can be used under the strict liability imputation mode of contract law,and further determines the scope of application of the rule of fault offset by distinguishing the rule of derogation from the rule of fault offset.Thirdly,in the field of liability for breach of contract,the rule of negligence offset needs three applicable elements:the breach of contract by the breaching party,the fault of the non-breaching party to the damage result,the causal relationship between the behavior of two parties and the damage result.