违约责任与侵权责任竞合问题实证研究

发布时间：2018-08-17 09:00

【摘要】：随着社会的不断发展,社会生活变得复杂多样,合同法与侵权法的双向扩张,使违约责任与侵权责任的竞合渐成常态。面对《民法总则》第186条规定的择一请求权,权利人是依《合同法》提起违约之诉,还是依《侵权责任法》提起侵权之诉,或将产生截然不同的法律后果。本文通过对国内外研究现状的梳理,比较和分析学说中的不同见解。违约责任与侵权责任竞合有三种不同的立法模式,禁止竞合模式、限制竞合模式、允许竞合模式,我国采取允许竞合模式。基于此,笔者从裁判文书网搜集了 300多个中院以及高院的有关责任竞合的案例,根据损害类型将案例分为人身损害型、财产损害型以及人身和财产交叉损害型进行分类统计分析。通过对搜集案例的整理与分析,发现我国司法审判中违约与侵权责任竞合存在支持当事人二审改变责任主张、违约责任与侵权责任竞合的主体不统一等问题;在竞合选择中,当事人的主要考量因素为诉讼时效、责任构成要件以及赔偿范围。关于违约责任与侵权责任竞合的解决方案,在法解释学路径方面,应对违约责任赔偿范围作扩大解释,将某些特定情形下的精神损害赔偿纳入其中;对择一请求权应解释为对当事人在原审中应获得却没有获得损害赔偿的在上诉时可以变更诉求。在法律创制路径方面,应对责任竞合加以限制,旅游合同、租赁合同、以愉悦精神为目的的合同以及当事人约定了违约金的合同只允许当事人主张违约责任;医疗合同、买卖合同、运输合同只允许当事人主张侵权责任;其它不具有典型性或者案情复杂的合同采取允许竞合模式。限制竞合模式不但可以节约诉讼成本、便捷诉讼,也能平衡双方当事人的权利义务,在司法实践中相较之前而言也更易操作、更为明确。
[Abstract]:With the continuous development of society, social life becomes complex and diverse, and the two-way expansion of contract law and tort law makes the combination of liability for breach of contract and liability for tort become the norm. In the face of the optional right of claim stipulated in Article 186 of the General principles of Civil Law, the obligee will bring a suit for breach of contract according to the contract Law or a suit for infringement under the Tort liability Law, or will have completely different legal consequences. This paper compares and analyzes the different views in the theory by combing the current research situation at home and abroad. There are three different legislative models of concurrence of liability for breach of contract and liability for tort, including prohibition of concurrence, limitation of concurrence, permission of concurrence, and adoption of permitted coopetition in our country. Based on this, the author collected more than 300 cases of liability concurrence between the intermediate people's courts and the higher courts from the judgment documents Network, and classified the cases into personal injury cases according to the types of damage. The property damage type and the personal and property cross damage type are classified and analyzed. Through the collation and analysis of the collected cases, it is found that the concurrence of breach of contract and tort liability in judicial trial in our country has some problems, such as supporting the parties to change their liability in the second instance, the main body of the concurrence of breach of contract liability and tort liability is not unified, and so on. The main consideration factors of the parties are the limitation of action, the elements of liability and the scope of compensation. With regard to the solution of concurrence between liability for breach of contract and liability for tort, the scope of compensation for breach of contract should be expanded to include the compensation for mental damage under certain circumstances in the path of hermeneutics of law. The right to choose a claim shall be interpreted to mean that a party who is entitled to receive damages in the original trial may change his claim on appeal. With regard to the path of legal creation, it is necessary to limit liability concurrence, travel contract, lease contract, contract for the purpose of pleasure, and contract where the parties agree on liquidated damages, which only allow the parties to claim liability for breach of contract. The contract of sale and purchase, the contract of carriage only allows the parties to claim tort liability; the other contracts which are not typical or complicated adopt the mode of allowing concurrence. The limited concurrence mode can not only save the cost of litigation, facilitate litigation, but also balance the rights and obligations of both parties. In judicial practice, it is easier to operate and clearer than before.
【学位授予单位】：中南林业科技大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6

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