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Contract Law of China Study and Improvement of Fault Liability


Fault liability is the conclusion of the contract process, one party intentionally or negligently, in breach of contractual obligations first, resulting in the loss of the other party reliance interest, the law shall bear civil liability. Fault liability system is the civil liability system is an important part of the 1861 German jurist Yellin proposed fault liability theory, known as the Law on the findings, and national legislation and case law had a profound impact. As China's development of the socialist market economic system, for the protection of China's socialist market economic order and stability, maintain market economic transactions safety, protecting the legitimate rights and interests of the contract signed to enhance economic efficiency and safe operation of the economy, in the Law I have to fault liability and legal issues related to improving the analysis and elaboration. ,
One fault liability founder of the theory and confirmed by our laws
Fault liability (Culpa in Contrahendo) theory is by the famous German jurist Garling (Rudolf Von Jhering) was first proposed in 1861, Garling, in its editor's on the fault, when the contract is invalid and does not hold for damages, He said: is not only a contractual relationship existing, ongoing contractual relationship in should also be included, otherwise, contract transactions will be exposed on the outside, unprotected, can not help but become a contracting party to the other party, or not pay attention to the victims of negligence. contract produced a conclusion of their obligations, if such an effect because of legal obstacles to be excluded, it will produce a compensation obligation. Thus, the so-called contract invalid, refers only to fulfill effect does not occur, not without any effect. In short, the parties contract because of his negligence resulted in the establishment who is not on the letter of the contract for the effective establishment of the relative, based on this trust should be compensated for damage caused. In the However, recognition of the German judicial practice fault liability, and the case law and doctrine has been the development of fault liability as a general principle, the formation of a system. Now, fault liability not only for the contract does not hold, invalid or revoked, and in some occasions a Valid Contract also apply to the room.
In Japan, is also accepted by contracting theory and case law negligence theory. Japan's Case Doctrine of consultations between the parties from the contact relationship of trust and good faith principle, the basis for finding fault liability and fault liability to extend the application to the following areas: ⑴ beginning is unable to perform the contract is not formed or invalid; ⑵ only stay in the preparation of the contract negotiation stage; ⑶ the case of a Valid Contract. Fault liability applicable to the case of a Valid Contract, mainly targets has defects and breach of warranty contracting parties both cases.
1940 years, practice the behavior required by the obligation. 1942,
Taiwan, China as German civil law with civil law, and no fault liability provisions of the general principle, but only in respect of special circumstances provided for fault liability, Article 247 of the Act provides: underlying the invalid, the parties at the time of contracting, not knowing or ought to know who the letter for non-contract due to negligence and damage caused to the effective liability of the other party. A similar section 113 provides:
Of specific requirements. Until 1999, promulgated the China's current
Second, the contracting negligence liability doctrine and the recognition of its principles in China
Fault liability is the theoretical basis of what academics from different perspectives, broadly divided into the following:
(A) of the said violations. German civil law within ten years after the enactment of the relevant legal basis for fault liability, is the dominant tort said. To say that, in addition to statutory conditions, the result of negligence on the occurrence of contracting the damage, the scope is adjusted tort law, tort law should be investigated for the perpetrator's responsibility.
(B) the legal action said. After the decline of violations, said, followed by the sky, a theory on the case through legal action that is said. To say that the legal basis of fault liability is a legal act between the parties. Subdivided into contracts to say that the purpose and the implied responsibility to contract said. Purpose of said contract that the basis of fault liability is subsequently entered into a contract between the parties; implied contractual duty, said that the basis of fault liability is the behavior of the parties engaged in contracting the occasion of the conclusion of the responsibility implied contract.
(C) the law says. That is advocated by the Block. To say that the fault liability is neither a legal basis for infringement, nor is a legal act, but the direct provisions of the law.
(D) the principle of good faith, said. To say that the legal basis of fault liability is the principle of good faith. In accordance with the principle of good faith in contracting negotiations, should fulfill the necessary attention on transactions to protect the interests of the relative. If the parties violated the due care obligations, such as third-party, notification, protection, confidentiality and other obligations, causing relative harm, self-liable. The theorists say that the current popular opinion in Germany.
The above theory, scholars from various countries vary, violations and legal action, said that the defect is obvious. Violations of tort law that violation of the basic requirements. Because tort law is the obligation imposed on the people the right to not be violated obligations, and contracting negligence against the relative who is not a right. Yet to be established by legal acts that do not exist in the contract or contracts as the basis for contracting negligence, in fact, confused the fault liability and breach of contract differences. The law says that honesty and trustworthiness, scholars from different perspectives, some scholars think that there is no essential difference between the two theories. Because fault liability is really a duty under the law directly, but the basis for such a provision the law is that of good faith, honesty and credit is the basic principle of our civil law, China's principle of good faith, which is the basic spirit of our civil legislation is the same.
Third, the composition of elements of fault liability
Civil contract law is an important part of the legal system, so the fault liability should generally have the constituent elements of civil liability.
(A) of the contracting parties, the first breach of contractual obligations
Fault liability as a responsible form of existence, must be the existence and breach of contractual obligations as a prerequisite. The first contractual obligations, is the establishment of the contract before the parties entered into a contract based on the principle of good faith effort undertaken, notification, protection, confidentiality and other obligations. Different from the contractual obligations before the contract obligations, the basis of its formation is not established by law the contract, but the principle of good faith. Once the main civil contracting process between the two parties should be presumed to form a reasonable confidence, that a party be given based on the principle of good faith to take care of each other, faithful to each other, inform each other and involve the other contract-related property, personal safety subject matter. First occurrence of contractual obligations by both parties into the process to sign a contract. If the parties have not formed a civil relationship between the subjects, of course,[link widoczny dla zalogowanych], the problem does not occur contracting negligence.
(B) by a relative loss of Contracting
Civil liability generally exists for the establishment of damage condition of fact, fault liability is no exception, only the first Contracting Party breach of contractual obligations relative damage caused to generate fault liability. Fault liability in the loss of interest mainly refers to the loss of trust, trust, loss of interest to determine the scope, scholars from different perspectives. Mr. Wang Zejian that, generally speaking, the injured party may request, the Department of behavior without harm, the state in which it should be based on the principle of trust interests. Germany and Japan in the doctrine of precedent, that in case of fault liability, the amount of compensation shall not exceed the performance of interest to limit. Which should not exceed the time of conclusion of the contract the parties should be anticipated, because the contract does not hold, invalid or revoked by the possible loss,