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Study on the Reconstruction of the Civil Liability System

Author: QiuXueMei
Tutor: LiuJingWei
School: Xiamen University
Course: Civil and Commercial Law
Keywords: Civil Liability Protective Duty Protective Liability
CLC: D923
Type: PhD thesis
Year: 2007
Downloads: 1001
Quote: 1
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The contract liability and tortious liability are two main pillars of the traditional civil liability system. The former is based on breaching the agreed duty, and, the latter is based on breaching the legal duty that anybody should not infringe the others. However, with the development of the modern society, the contact relationship is more and more complicated. In order to protect the complete rights and benefits of the party, the civil duties expand in contract law and tort law. They are formed of the pre-contract duty, and the contractual collateral duty, and the post-contract duty, and the safety-guard duty. The rise and development of these new type civil duties had broken up the boundary of the traditional contract liability and tortious liability. The traditional“contract-delict”dichotomy civil liability is facing the theoretical and practical problems in the modern society. The main purpose of this dissertation is just to solve this question.The first chapter examines the“contract-delict”dichotomy civil liability. First, on the basis of defining the civil liability, it discusses the relationship of the civil duty and civil liability. Then, it recounts the formation of the“contract-delict”dichotomy civil liability in our country. The theoretical basis of dichotomy civil liability is the different character of the duty. In the modern society, the theoretical and practical predicament of the“contract-delict”dichotomy civil liability is summed up by analyzing the new type civil duties. It makes us to examine again the traditional dichotomy system of the civil liability.The second chapter observes the revised ways of the“contract-delict”dichotomy civil liability in foreign countries. At first, it discusses the two discoveries of the law science of“Culpa in contrahendo”and“Positive Vertragsverletzung”. Then, it studies the revised ways of traditional civil liability in French and Germany in the past hundred years. The revised way in French law is mainly to expand the tortious liability. And the revised way in German law is mainly to expand the contract liability. But they both could not solve perfectly the theoretical and practical problems of traditional civil liability in the modern society. Although the tradition of Anglo-American law is different from the Continental law, its revised way of expanding the negligence is use for reference.The third chapter concludes the current revised ways of the“contract-delict”dichotomy civil liability in our country. There are three kinds of revised ways in the academic circles. One is expanding the contract liability, classifying the pre-contract liability, and the tortious performance liability, and the post-contract liability, and the liability of breaching the safety-guard duty into the contract liability. Another is expanding the tortious liability, classifying the liability above into the tortious liability. The last has no united way, drifting away the contract liability and the tortious liability. As far as the legislation of civil code is concerned, whether the civil code draft of the National Peoples Congress of our country, or the three proposals of the academic circles, could not solve perfectly the confusion and the conflict of the civil liability system, owning to their ways still under the frame of the traditional civil liability.The forth chapter researches on the protective duty, and explores the“contract- delict-protection”tripartite civil liability system. It discusses on the theory of“ein einheitliches Schutzpflichtverh?ltnis”put forward by German scholar. It tries to unify the four new type civil liability on the basis of the protective duty. In order to solve the victim’s damages compensation, it tries to establish the protective liability, different from the contract liability and tortious liability. This way should enrich and develop the civil liability system in our country.

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CLC: > Political, legal > Legal > Chinese law > China and France
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