An Analysis Of The Application Of The System Of Contract Liability For Negligence In China’s Judicial Practice

The contracting fault responsibility system was established to complete the margin that the tort law of German civil law couldn’t adjust.But with development,the contracting fault responsibility system has become the important method to adjust market order,protect trade subject’s legitimate interests and keep the balance between contract freedom and principle of honesty and credibility.Trough the analysis of the application of the liability system of contracting fault in Chinese judicial practice,it is observed that the compensation for damages can’t be judged with uniform standard.Because the compensation for damages isn’t explicitly provided in China,the judges judge this through their professional knowledge and the truth but not law.At the same time,the nature of civil liability which arises from the invalidity,unsuccessful or cancellation of the contract isn’t explicitly provided,too.The judges judge this from jurisprudence,the judge process is lack of legal basis.Contracting negligence liability is an independent liability form,when the party to a contract violates the pre-contract obligation,there is contracting negligence liability.It has independent constituent elements,the contracting negligence liability,the liability for breach of contract and the tort liability are consistent.It is not conducive to the realization of fairness justice and the protection of parties’ interests,if the contracting fault liability becomes one part of the tort liabilities,because the tort liability system can’t adjust the part that is only adjusted by the contracting fault responsibility system.Trough the analysis of typical cases in judicial practice,demonstrated theoretically,there is a conclusion: it is better for China’s judicial practice to regard the contracting negligence liability as an independent liability form.Under the system of contracting negligence liability,the loss of reliance benefit and other property damages due to contracting negligence behavior both can be compensated.As for the physical injury due to the violation of protection duty,it is better to be adjusted by tort liability system.At last,in order to solve problems mentioned above,we should add an article after the NO.500 article of Civil Code of the People’s Republic of China,and the article is “When the contract is invalid,untenable or reversed due to the fault of contracting party and cause the contracting counterpart’s damages,the provisions of the preceding paragraph shall apply.” The amount of compensation for culpability in contracting is related to the subject’s market value,market change and so on.The amount is different in every single case.And the personal damage compensation is concerned with China’s tort law.To solve problems appear in China’s judicial practice,it is necessary to let efficient judgments guide the practice and keep the judgement reasonable and legal.And the significant contracting fault party publicized system may also be established.Each People’s High Court can publicize the contracting fault party who causes a loss of more than 60 percent of the profit gained from the performance of a contract to the contract counterpart,then contracting parties are requested to obey the spirit of contract and they can avoid the risk of the loss due to contracting parties’ fault.