First, the concept and characteristics of the concurrence of liability for breach of contract and tort liability
The so-called concurrence of liability for breach of contract and tort liability means that one party's breach of contract meets the requirements of tort at the same time, which leads to the occurrence of liability for breach of contract and tort liability, and the claim for breach of contract and tort liability overlaps, forming the concurrence of claims. [2] For example, Party A entrusts Party B to repair the TV set, but Party B sells the TV set to a bona fide third party Party C without authorization. At this time, Party A may hold Party B liable for property infringement, or require Party B to bear the liability for breach of contract for non-performance. If the injured party is allowed to exercise two kinds of claims without restriction, it will lead to the double liability of the breaching party, which is obviously unfair. Therefore, Article 122 of China's Contract Law stipulates: "If one party violates the other party's personal and property rights, the injured party has the right to choose to ask it to bear the liability for breach of contract in accordance with this law or other laws." That is to say, in the case of concurrent liability for breach of contract and tort liability, the injured party can only choose one: either file a breach of contract lawsuit and pursue the other party's liability for breach of contract, or file a tort lawsuit and pursue the other party's tort liability, but they cannot exercise both claims at the same time.
From the above concepts, we can see that the concurrence of liability for breach of contract and tort has the following main characteristics:
(1) Joint liability must be caused by the same illegal act. It is a prerequisite for an illegal act to produce several legal responsibilities. If an actor commits more than two illegal acts, which causes tort liability and breach of contract liability at the same time, different legal provisions shall be applied and different responsibilities shall be borne.
(2) The concurrent liability must be that the same illegal act meets the constitutive requirements of tort liability and breach of contract liability at the same time, so that two kinds of civil liabilities can coexist in the same illegal act.
(3) The competing debts must be the same civil subject. The same illegal act that leads to the simultaneous occurrence of liability for breach of contract and tort liability is carried out by the same civil subject. This kind of illegal behavior meets the constitutive requirements of tort liability and breach of contract liability at the same time. Therefore, the subject who may bear double liability is the same person, and the subject who may enjoy double claim is also the same person.
(four) the victim can only choose one of the liability for breach of contract and tort liability to make a request, and can not make two requests based on both liabilities at the same time. Tort liability and breach of contract liability coexist and conflict with each other, but the parties can only get one payment satisfaction. If they coexist and get multiple satisfaction, it is unfair to the responsible person.
Second, the reasons for the concurrence of liability for breach of contract and tort liability
The fundamental reason of liability concurrence is that a breach of contract not only infringes on the expected interests of creditors, but also infringes on the inherent interests of creditors. Breach of contract infringes on the expected interests of creditors, resulting in the right to claim damages for breach of contract, which constitutes the liability for breach of contract; Breach of contract infringes on the inherent interests of creditors, which not only leads to the right to claim damages for infringement, but also leads to the right to claim damages for breach of contract, which constitutes the liability for breach of contract. On the point of infringing on the inherent interests, the two propositions completely coincide. These two claims for damages have exactly the same relief content and the same protection content, so they constitute concurrence. The difference between liability for breach of contract and tort liability is mainly reflected in whether there is a contractual relationship between the wrong party and the victim, which is the basic legal relationship arising from the concurrence of liability for breach of contract and tort liability. After the two parties signed the contract, one party committed an infringement, and at the same time, the infringement violated the contractual obligations, leading to breach of contract, which inevitably led to the concurrence of liability for breach of contract and tort liability. Before the tort, there was a contractual relationship between the parties, which is the fundamental reason for the concurrence of liability for breach of contract and tort liability.
The direct causes of liability for breach of contract and tort are as follows:
(a) The breach of contract by the parties to a contract also violates mandatory obligations stipulated by law, such as collateral obligations such as protection, care, notification and loyalty, or other statutory obligations of omission.
(2) Infringement, breach of contract and breach of contract.
Infringement and breach of contract. That is to say, the tort committed by the actor causes damage to the contractual interests of others, which is in line with the constitutive requirements of illegal acts. For example, if the custodian has no right to dispose of the deposit and sells the deposit to a third party, the act of not having the right to dispose of the losses suffered by the depositor is an infringement and constitutes a breach of contract that violates the custody obligation.
Breach of contract and infringement. That is, the breach of contract by the parties to the contract causes damage to the interests of others other than the contractual interests, which is in line with the constitutive requirements of tort. For example, the unqualified quality of the subject matter delivered by the sales contract (breach of contract) causes personal or property damage (infringement) to others.
(3) When the wrongdoer intentionally infringes on the rights of others and causes damage, if there is a contractual relationship between the offender and the victim in advance, the existence of this contractual relationship can make the injurer's damage to the victim not only constitute infringement, but also constitute a breach of contract that violates the obligations agreed by the parties in advance. For example, the doctor's gross negligence leads to the patient's injury or death.
(4) Although the illegal act only meets one requirement of liability, the law requires the parties to the contract to make a request and bring a lawsuit according to the relevant tort provisions, or to include the tort liability in the scope of application of the contract liability to protect the interests of the victims. For example, China's "General Principles of Civil Law" allows victims of substandard products to file infringement lawsuits with product manufacturers that have no contractual relationship with them. [3]
Third, the form of concurrence of liability for breach of contract and tort liability.
Liability for breach of contract refers to the legal consequences that the parties should bear if they fail to perform their contractual debts. [4] As the main measure to ensure the realization of creditor's rights and the performance of debts, it refers to the liability for damages and payment of liquidated damages when the parties fail to perform the contractual debts. Tort liability refers to a kind of debt that the actor illegally infringes on the property rights or personal rights of others and causes losses. In real social activities, due to the complexity of civil relations and the multiplicity of the nature of civil tort, the two types of responsibilities often overlap. If the breach of contract that causes damage to the other party's personal and property rights also conforms to the characteristics of tort, there will be concurrence of liability for breach of contract and liability for tort.
As long as there is a contractual relationship, there may be a phenomenon of concurrence of liability for breach of contract and tort liability, but this phenomenon is more common in contractual relationships such as sale, lease, medical care, storage and transportation.
(1) Sales contract. In the sales contract, if the seller intentionally or negligently sells the defective subject matter to the buyer, thus causing damage to the buyer, he shall be liable for breach of contract in accordance with the Contract Law, and shall be liable for tort compensation for personal and other property damage of the buyer in accordance with the Tort Law, resulting in the phenomenon of overlapping responsibilities.
(2) lease contract. In the lease contract, if the defect of the leased property provided by the lessor infringes on the lessee's health or causes property loss, or the leased property is damaged or lost due to the lessee's fault, there may be concurrence of liability for breach of contract and tort liability.
(3) medical contract. For medical accidents, according to the provisions of the medical contract, hospitals or medical personnel should bear the liability for breach of contract, because the party providing medical services has the obligation to be careful not to cause medical accidents because of its fault, otherwise it will violate the contractual obligations; However, according to the Tort Liability Law, it should bear the tort liability of medical malpractice, and the medical malpractice caused by fault infringes on the personal rights of others.
(4) Custody contract. If the safekeeping party violates the obligation of proper custody, it shall bear the liability for breach of contract in accordance with the custody contract; According to the Tort Liability Law, if the custodian causes property damage to others due to his fault, he shall be liable for tort damages.
(5) transport contract. Whether it is a passenger transport contract or a freight transport contract, the concurrence of liability for breach of contract and tort liability often occurs. Article 302 of China's Contract Law stipulates: "The carrier shall be liable for damages for the casualties of passengers during transportation …" Article 311 stipulates: "The carrier shall be liable for damages for the damage or loss of goods during transportation …" If the above-mentioned carrier violates the obligations under the transportation contract, it also constitutes infringement.
Fourth, the difference between liability for breach of contract and tort liability.
The concurrence of liability for breach of contract and tort liability is accompanied by the independence of contract law and tort law. Its existence not only reflects the complexity and multiplicity of illegal acts, but also reflects the situation that contract law and tort law are independent and interpenetrating. An important contribution of Gaius' legal ladder in civil law is the establishment of the so-called "Gaius classification". According to this classic classification, civil liability is mainly divided into two categories: liability for breach of contract and liability for tort, and the basis for the distinction is the difference between liability for breach of contract and liability for tort. Up to now, almost all civil law textbooks have developed their narrative about civil liability in this way.
Although the concurrence of liability for breach of contract and tort is inevitable, the concurrence phenomenon cannot erase the difference between the two types of liability, and the different choices of the two types of liability will greatly affect the rights and obligations of the parties. The main differences between liability for breach of contract and tort liability are as follows:
(1) in terms of constitutive requirements. China's "Contract Law" stipulates no-fault liability, while tort generally adopts fault liability, and only products, dangers, environmental pollution, neighboring relations and other responsibilities are no-fault liability. Therefore, if the parties take the liability for breach of contract as the litigation reason, there is no need to prove that the other party is at fault; If tort liability is the cause of action, it is necessary to prove that the other party is at fault. In addition, the composition of tort must be based on the existence of damage results, and the tort liability caused by it is also based on damage. Different from breach of contract and liability for breach of contract, liability for breach of contract is not based on the actual occurrence of damage except compensation for losses.
(2) About the scope of compensation. The amount of liquidated damages may be agreed by the parties in the contract. If there is no such agreement, according to the provisions of China's contract law, the amount of damages should be equivalent to the losses suffered by the victim due to breach of contract, generally including only direct losses. In tort liability, the scope of compensation includes direct loss and indirect loss in principle, and compensation for mental damage can be made when personality right is violated; If another person dies illegally, the scope of compensation can be extended to the necessary living expenses of the deceased's dependents.
(3) On the way of responsibility. Tort liability includes both property liability, such as compensation for losses, and non-property liability, such as eliminating influence and restoring reputation; Liability for breach of contract is mainly property liability, such as compulsory actual performance and payment of liquidated damages.
(4) In terms of exemption conditions. In addition to the statutory exemption conditions, the parties to a contract may also agree in advance not to assume responsibility. In tort liability, the exemption conditions or reasons can only be legal, and the parties cannot agree on the exemption conditions or the scope of force majeure in advance.
(5) Different responsibilities to third parties. In the liability for breach of contract, if the contract debt cannot be performed due to the fault of the third party, the debtor shall be responsible to the creditor first, and then recover from the third party. In tort liability, the actor is only responsible for the consequences of damage caused by his own fault.
To sum up, there are important differences between liability for breach of contract and liability for tort. Therefore, in the case of overlapping responsibilities, what kind of responsibilities illegal acts bear will have different legal consequences, which will seriously affect the protection of victims' interests and the sanctions against illegal acts.
Five, the choice of liability for breach of contract and tort liability should be considered comprehensively.
The choice of claim right has great influence on the interests of the parties, especially the victims. When the liability for breach of contract and tort liability overlap, the parties choose to exercise their right of claim by comparison and ask the court for protection.
(1) Look at litigation jurisdiction.
According to the provisions of China's Civil Procedure Law, a lawsuit brought in connection with a contract shall be under the jurisdiction of the people's court of the defendant's domicile or the place where the contract is performed. The parties to a contract may agree in a written contract to choose the place where the contract is performed, the place where the contract is signed, the plaintiff's domicile and the people's court where the subject matter is located for jurisdiction. A lawsuit brought for infringement shall be under the jurisdiction of the people's court of the place where the infringement occurred or the defendant's domicile. [5]
(two) to see whether there is a special relationship of rights and obligations between the two parties before the legal relationship of damages occurs.
The content of contractual obligations is often determined according to the will and interests of the parties to the contract. In tort, there is no problem that the content of legal obligation is determined by the interests of the parties. Therefore, some forms of double violations are illegal under tort law, but may not be illegal under contract law. If the parties bring a lawsuit against the contract, no compensation shall be paid according to law.
(3) Look at the scope of compensation.
The liability for damages in a contract is mainly compensation for property losses, excluding compensation for personal injury and compensation for mental injury, and the law often uses the "predictability" standard to limit the scope of compensation. For tort liability, damages include not only personal damages and mental damages, but also direct losses and indirect losses.
(4) Look at the burden of proof.
In contract litigation, the victim does not bear the burden of proof, and the breaching party must prove that he is not at fault, otherwise it will be presumed to be at fault. In tort litigation, the infringer usually does not bear the burden of proof, and the victim must prove his claim. The inversion of burden of proof is only a special phenomenon in some tort. At this point, it is more beneficial for the victim to choose the liability for breach of contract.
(5) Look at the statute of limitations.
According to China's General Principles of Civil Law, the limitation of action for claims for tort damages is generally 2 years, but the limitation of action for claims for personal damages is 1 year, which is 2 years in product quality law, 3 years in environmental protection law and 2 years in state compensation law. The limitation of action for damages for breach of contract is generally 2 years. However, if the unqualified goods are not declared, the rent is delayed or refused, and the deposited property is lost or damaged, the time limit of 1 year shall apply. Article 129 of the Contract Law stipulates that the time limit for bringing a lawsuit or arbitration for disputes over international contracts for the sale of goods and technology import and export contracts is four years. Therefore, the victim can choose the limitation of action that is beneficial to him according to the specific situation.
(6) Look at the composition of responsibility.
In the liability for breach of contract, the actor should bear the liability for breach of contract as long as he has committed the breach of contract and has no effective defense. However, in tort liability, damage facts and consequences are the premise of tort liability, without which there would be no tort liability.
(7) See exemption conditions.
In the liability for breach of contract, in addition to the statutory exemption conditions (force majeure, etc. ), the parties to the contract may also agree in advance that they will not be liable, except for intentional or gross negligence, or they may agree in advance on the scope of force majeure. In tort liability, the exemption conditions or reasons can only be legal, and the parties cannot agree on the exemption conditions or the scope of force majeure in advance.
In the case of concurrence of responsibilities, we should pay attention to the respective constituent elements of liability for breach of contract and tort liability and the various situations in which concurrence occurs, and deal with them according to the choice of the parties and the liability for breach of contract or tort. It is of great significance for the victim to choose which responsibility to pursue the offender, because the composition, form, scope, limitation of action, jurisdiction and burden of proof of tort liability and breach of contract liability are different, and the victim's choice of different forms of liability will have different legal consequences. It should also be noted that there are two reasons why the parties can't sue at the same time, that is, the parties can't get the double indemnity. It is obviously unfair to ask the perpetrators to go to double indemnity, which increases their undue burden. After any creditor's rights of the parties are satisfied, the other creditor's rights will be extinguished, but if any creditor's rights of the parties are not realized, the parties can still bring a lawsuit based on the other creditor's rights.
Six, the exception of the concurrence of liability for breach of contract and tort liability
According to China's legislative and judicial practice, it is necessary to make an exception to the concurrence of liability for breach of contract and tort in law, which is the need to correctly handle concurrence cases, correctly apply civil laws and protect the legitimate rights and interests of the parties. These exceptions are as follows:
(1) If an illegal act causes personal injury or mental damage to others, even if there is a contractual relationship between the parties, it should be treated as tort liability instead of breach of contract. Because contractual liability can't provide relief for the personal injury and mental damage caused by the victim, it can only be compensated through tort damage.
(2) If there is a contractual relationship between the two parties in advance, but one party colludes with a third party maliciously and infringes on the interests of the other party, the behavior of the malicious collusion party and the third party constitutes the same infringement, and there is no contractual relationship between the third party and the victim, which should be treated as tort liability, so the perpetrator of malicious collusion will bear tort liability for the victim.
(3) In the case of overlapping responsibilities, if the parties have clearly agreed in advance in the contract that the two parties only bear the contractual responsibility and not the tort liability, in principle, it shall be handled according to the agreement of the parties, and one party shall not exercise the right of claim for tort litigation. However, after the establishment of the contractual relationship, if one party causes personal injury or death to the other party on the basis of intentional or gross negligence, it shall still bear tort liability.
(four) if the law specifically stipulates that the duty of care and responsibility of the parties should be reduced under special circumstances, the responsibility should be reasonably determined according to law. In the free custody contract, it is inappropriate for the custodian to bear tort liability if the deposit is lost.
(5) If there are exemption clauses in the contract and these exemption clauses are valid according to law, the parties cannot be required to bear tort liability because they are exempted from liability for breach of contract.
Seven, the solution of the concurrence of liability for breach of contract and tort liability
The specific form of illegal acts is independent of the will of legislators. Therefore, legal prohibition obviously cannot solve the problem of concurrence of responsibilities. The law cannot eliminate the concurrence of responsibilities. As a normal legal phenomenon, it should be recognized in legislation. Therefore, in the face of concurrence of responsibilities, we don't need to examine the rationality of concurrence, but to decide how the law should regulate the choice of the parties' right of claim in the case of concurrence of responsibilities, because allowing the victims of illegal acts to choose the right of claim has caused a series of complicated problems in theory: in the case of concurrence, does the obligee have two rights or one right of claim? If there are two, can one of them be exercised after it is realized?
Regardless of whether concurrence is prohibited or allowed, the laws of various countries actually deny the claim that the victim can realize two claims. According to the metaphor of Tony Will, a Frenchman, it is like "issuing a passport" to deal with the claim of the obligee in the case of overlapping responsibilities. If it is a country where competition is prohibited, the plaintiff has only one pass and is established through channels; In countries that allow concurrence and choice of claims, the plaintiff has two passes and can choose freely; However, in countries with limited choice of litigation system, the plaintiff can have two passes, but he must hand over one at the entrance, and sometimes the law orders him to hand over which one. The reason is simple: even if an illegal act is committed, the offender cannot bear double civil liability; For the victims, realizing two claims means obtaining double indemnity. This result obviously violates the nature and purpose of civil law.
The Summary of the Symposium on Economic Trials in Coastal Areas Involving Foreign Affairs, Hong Kong, Macao and Taiwan issued by the Supreme People's Court (Fa Jing Fa [1989]No. 12) clearly recognizes the concurrence of liabilities and allows the parties to choose the cause of action that is beneficial to them. It stipulates that "in the case of acceptance, two causes of action coexist. A legal fact or legal act can sometimes produce two kinds of legal relations. The most common one is that the creditor's right relationship and the real right relationship coexist, or the defendant's behavior constitutes both breach of contract and civil tort. The plaintiff can choose the cause of action that is beneficial to him, and the court with jurisdiction should not refuse to accept it because there are other causes of action. However, the parties may not bring a lawsuit on the same legal fact or legal act for different reasons. " As far as foreign-related and Hong Kong and Macao-related economic trials are concerned, the established principle of dealing with concurrence has not been extended.
Article 122 of China's Contract Law fully respects the principle of voluntariness of the parties by allowing the victims to choose the way of taking responsibility, which is conducive to protecting the interests of the parties. After the concurrence of liability occurs, the victim should make a choice. The time for the victim to choose the right of claim should be before the trial begins. Because the victim didn't collect all the evidence during the prosecution and didn't know enough about the collected evidence, it was difficult to make a hasty choice at this time. Make a choice before the trial begins, and have a certain time for the victim and his agent to weigh and consider. If a choice is made in the process of prosecution, and the choice is considered inappropriate before the trial begins, the original claim can be abandoned and a new choice can be made. "When the people's court brings a lawsuit to the people's court in accordance with the provisions of Article 122 of the Contract Law, it shall allow the creditor to make a choice, and then change the creditor's rights before the trial of the first instance. If the other party raises an objection to jurisdiction and the objection is established after examination, the people's court shall reject the prosecution. " [6] This provision shows that the court allows the victim to change the choice of liability mode before the trial of first instance. Usually, the victim can choose the most favorable way of responsibility. Even if the victim makes an improper choice, he should bear the adverse consequences unless he is improperly influenced. Therefore, the responsibility concurrence system, as an important system of civil law, should fully embody the principle of autonomy of will, which has great advantages.