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On the Relationship between the Dualistic Structure of Claim and Obligation & Liability

Author: LiuWenZuo
Tutor: ZuoXiangPing
School: Dongbei University of Finance
Course: Civil and Commercial Law
Keywords: Claim the Dualistic Structure of Claim Obligation Liability Tort Liability
CLC: D913
Type: Master's thesis
Year: 2011
Downloads: 63
Quote: 0
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Abstract


Established on an analysis of the basic concept of claim(Anspruch), obligation(Pflichtung) and liability(Haftung), this paper is attempting to explore the relationship between the claim of different function, obligation and liability under the framework of legal relation theory, finally integrating with current situation of Chinese Civil Legislation, attempting to analyze the qualitative definition of the tort liability in the future Civil Code.This article is divided into three parts.The title for the first part is Claim and the Dualistic Structure of Claim. This section mainly takes the claim and the dualistic structure of claim as the object of study. First of all, take right form expression as a clue, this article introduces the formation process of right. After that, it discusses the concept and the nature of claim, the position the claim stands in the traditional Civil Code as well as the significance of it. Secondly, it introduces the formation and importance of the dualistic structure of claim. This paper segregates the claim into basic right claim and relief claim according to the distinct purposes of exercise of the claim, after that, segregates the relief claim into right recover claim and damage compensation claim.The title for the second section is the Dualistic Structure of Claim and Obligation & Liability. This part mainly studies the concept of obligation and liability. as well as the relationship between these two parties. First, it analyzes the evolution of obligation and liability as well as the concept and relationship. Secondly, the text analyzes the relationship between the Dualistic Structure of Claim and obligation & liability, puts forward that under the framework of legal relation theory, the basic claim is corresponded to obligation while the relief claim corresponded to responsibility, and stylizes these two in analysis.The title for the third section is Qualitative Definition of the Tort Liability under the Framework of the Dualistic Structure of Claim. Based on the dualistic structure of claim, this part analyzes the qualitative definition of tort liability as an object of study. First, it introduces the origin and development of tort liability. Secondly, it introduces the position that tort liability stands on the traditional civil law. What’s more, it introduces the qualititative definition of tort liability in our civil legislation, mainly based on material from the China’s current legislation, the draft of Civil Code of the NPC Law Committee and Scholars, the paper of Professor Wei Zhenying. In the end, combined with the dualistic structure of claim, the text suggests the qualitative issues related to tort liability in the future Civil Code. The paper believes that tort liability for the qualitative pattern should return to the German law. However, considering tort law’s position in the Civil Code, stripped the Tort Liability Law from the General Obligation Law and made it independent is the trend. After the independence, together with the Contract Law, the Tort Liability Law should be commanded under the General Obligation Law, constituting a major part of the Obligation Law. As for the assignment to establish a liability system in China, it should be accomplished by the General Civil Code.

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