违约与侵权请求权竞合
发布时间：2018-08-27 18:09
【摘要】：中国经济发展之迅猛,使得中国社会商业活动空前活跃,市场经济活动给中国的民商法提供了前所未有的发展平台。伴随着个人财富的增长,中国人的权利意识从苏醒到壮大,合同尤其是以个人消费者为主体的民事合同以及形形色色的人身与人格权的侵权行为,正是以其与民众生活最紧密的相关性,与民众切身利益最重要的关联性,显现出其重要的现实意义。正是基于以上背景,选择以违约与侵权请求权竞合作为论文讨论的题目。 违约与侵权请求权竞合中最具争点的就在于其给付内容同一,达到目的一致,但其构成要件、赔偿范围等却因合同与侵权法的法规不同而各异,从而导致权利人举证责任难易不同,赔偿范围亦因选择请求权不同而有差异,从而直接影响到权利人请求权的行使与实现。我通过研究三种学说嬗变过程,认为对竞合现象的认识已从视其作不正常现象到正常法律现象,且须从有于权利保护出发,于理论与实践中找到一个切实可行的解决之道,能以最简捷的手段,消弥两大法规带来的差异,实现当事人权利保护之最佳效果。 本文着重分析了违约与侵权法规在权利保护上的差异,这是合同法与侵权 WP=4 法在各自目的与原则上的不同所致,因此,尽管发生违约与侵权竞合,但于实务中选择不同请求权的差别是不可避免的。本文认为应采用请求权竞合说的允许竞合模式,同时辅以必要的限制选择。鉴于请求权竞合时保护的是人身、人格权与财产权,顺应民法保护权利之趋势,当事人可以选择使用两个请求权当属合理正义,也体现竞合之存在价值,以两个请求权选择行使达到当事人权利实现的充分保障。但两个请求权范围不同而导致的实现目的不一致,可以考虑用扩大责任范围加强请求权的方式解决,减少使用强制选择的范围。在分析了近年来非财产损害赔偿有进入合同赔偿范围的现象后,认为合同中适用非财产损害赔偿尚有待与合同原则相磨合之过程,但在违约与侵权请求权竞合时,可以在违约请求权中包含非财产损害赔偿。该模式从长远看也有合理性。
[Abstract]:With the rapid development of China's economy, China's social and commercial activities have become more active than ever, and market economic activities have provided an unprecedented platform for the development of China's civil and commercial law. With the growth of personal wealth, the Chinese people's consciousness of rights from awakening to grow, contracts, especially individual consumers as the main body of civil contracts and all kinds of violations of personal and personality rights, It is the most close correlation with the people's life and the most important relationship with the vital interests of the public, showing its important practical significance. Based on the above background, the author chooses the concurrence of breach of contract and tort claim as the topic of discussion. The most controversial point in the competition between breach of contract and tort claim is that the content of payment is the same and the purpose is the same, but its constituent elements, compensation scope and so on are different because of the different laws and regulations of contract and tort law. As a result, the burden of proof of the obligee is different, and the range of compensation is different because of the choice of claim right, which directly affects the exercise and realization of the right of claim. By studying the evolution process of three kinds of theories, I think that the understanding of the phenomenon of concurrence has changed from the abnormal phenomenon to the normal legal phenomenon, and we must find a feasible solution from the protection of rights and the theory and practice. It can eliminate the difference between the two laws by the simplest means, and realize the best effect of the protection of the parties' rights. This paper analyzes the differences between breach of contract and tort laws in the protection of rights, This is the contract law and tort WP=4 law in their respective purposes and the original As a result of the difference, Therefore, it is inevitable to choose different claims in practice, although breach of contract and infringement are competing. In this paper, we should adopt the permitted concurrence mode of the theory of competing right of claim, and at the same time, complement it with the necessary restricted choice. In view of the fact that the person, personality and property rights are protected when the right of claim is competing, and in accordance with the trend of civil law protection, the parties may choose to use the two claims as reasonable and just, and also reflect the existence value of competing rights. The full protection of the realization of the rights of the parties can be achieved by the exercise of the two right of claim. However, because the scope of two claims is different and the purpose is not the same, we can consider the way of strengthening the right of claim by expanding the scope of responsibility, and reduce the scope of compulsory choice. After analyzing the phenomenon that non-property damage compensation has entered the scope of contract compensation in recent years, it is considered that the application of non-property damage compensation in the contract has yet to be brought into line with the contract principle, but when the claim for breach of contract and the tort claim are competing, Compensation for non-property damage may be included in the right of claim for breach of contract. The model is also reasonable in the long run.
【学位授予单位】：华东政法学院
【学位级别】：硕士
【学位授予年份】：2003
【分类号】：D923
本文编号：2208040
[Abstract]:With the rapid development of China's economy, China's social and commercial activities have become more active than ever, and market economic activities have provided an unprecedented platform for the development of China's civil and commercial law. With the growth of personal wealth, the Chinese people's consciousness of rights from awakening to grow, contracts, especially individual consumers as the main body of civil contracts and all kinds of violations of personal and personality rights, It is the most close correlation with the people's life and the most important relationship with the vital interests of the public, showing its important practical significance. Based on the above background, the author chooses the concurrence of breach of contract and tort claim as the topic of discussion. The most controversial point in the competition between breach of contract and tort claim is that the content of payment is the same and the purpose is the same, but its constituent elements, compensation scope and so on are different because of the different laws and regulations of contract and tort law. As a result, the burden of proof of the obligee is different, and the range of compensation is different because of the choice of claim right, which directly affects the exercise and realization of the right of claim. By studying the evolution process of three kinds of theories, I think that the understanding of the phenomenon of concurrence has changed from the abnormal phenomenon to the normal legal phenomenon, and we must find a feasible solution from the protection of rights and the theory and practice. It can eliminate the difference between the two laws by the simplest means, and realize the best effect of the protection of the parties' rights. This paper analyzes the differences between breach of contract and tort laws in the protection of rights, This is the contract law and tort WP=4 law in their respective purposes and the original As a result of the difference, Therefore, it is inevitable to choose different claims in practice, although breach of contract and infringement are competing. In this paper, we should adopt the permitted concurrence mode of the theory of competing right of claim, and at the same time, complement it with the necessary restricted choice. In view of the fact that the person, personality and property rights are protected when the right of claim is competing, and in accordance with the trend of civil law protection, the parties may choose to use the two claims as reasonable and just, and also reflect the existence value of competing rights. The full protection of the realization of the rights of the parties can be achieved by the exercise of the two right of claim. However, because the scope of two claims is different and the purpose is not the same, we can consider the way of strengthening the right of claim by expanding the scope of responsibility, and reduce the scope of compulsory choice. After analyzing the phenomenon that non-property damage compensation has entered the scope of contract compensation in recent years, it is considered that the application of non-property damage compensation in the contract has yet to be brought into line with the contract principle, but when the claim for breach of contract and the tort claim are competing, Compensation for non-property damage may be included in the right of claim for breach of contract. The model is also reasonable in the long run.
【学位授予单位】：华东政法学院
【学位级别】：硕士
【学位授予年份】：2003
【分类号】：D923
【引证文献】
相关硕士学位论文 前1条
1 唐军;产品责任法律适用研究[D];四川大学;2006年
，本文编号：2208040
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