On The Perfection Of The System Of Concurrence Of Civil Liability

After the contract law adopted the "alternative treatment mode" to deal with the concurrence of liability for breach of contract and tort in the form of legislation,the academic differences on the theory of concurrence of liability and whether concurrence is allowed in China’s academic circles tend to ease,and begin to turn to the discussion on the solution of concurrence of liability.According to the collation and analysis of typical cases of concurrence of liability,"alternative treatment mode" is controversial in the identification,selection and treatment of concurrence of liability.In the aspect of the determination of concurrence of liability,there are differences in the court’s judgment on the basis of the premise of the liability concurrence,which leads to differences in the identification of liability concurrence.The type of obligation violated by breach of contract or infringement is vaguely affecting the judgment of breach of contract.Regarding the choice of responsibilities for the liability concurrence,in theory the law gives the parties the right to choose.However,there are situations where the judge directly chooses on behalf of the parties,and it is inevitable that the parties will abuse their rights.Moreover,the law only stipulates that the parties have the right to choose,and there are no specific provisions on the relevant details of the exercise of the right of choice.Therefore,the exercise of the right of choice by the party in judicial practice has not received the due benefits.There are also different opinions on the treatment of concurrence of liability,whether the prior agreement of the contract is excluded due to the choice of tort action,the concurrence of liability involving the third party,and how to deal with other types of concurrence of liability.To solve the above problems,it is necessary to improve the system of concurrence of liability.After comparing the treatment schemes of foreign theories and judicial practice and the suggestions of Chinese scholars for the improvement of the system of concurrence of liability,it is found that the establishment of a step-by-step treatment mechanism to solve the application of concurrence of liability step by step from identification,selection to treatment is feasible while maintaining the stability of the legal system.In the aspect of identification,we can correctly identify the concurrence of liability by excluding the situation that the concurrence of liability is not applicable,such as the unequal status of breach of contract and tort,the concurrence of articles or the aggregation of liability.In terms of choice,we should insist that the subject of the right of choice is the party concerned and at the same time restrict the right of choice.In dealing with cases,we should give full play to the discretion of judges,strengthen the interpretation obligation of judges and attach importance to the demonstration function of cases.In addition,in terms of legislation,Article 186 of the "Civil Code",as a general provision,should expand the scope of application of concurrence of liability and make supplementary explanation to the special provisions of law,so as to provide legislative support for the perfection of concurrence of civil liability system.