Liability for breach of contract is the most important system in contract law, and the principle of imputation of liability for breach of contract is the essence and core content of this system. There cannot be two contradictory imputation principles in the same legal field at the same time, and strict liability principle is the only imputation principle in the field of contract law in China. Determining the principle of strict liability is the only imputation principle in the field of contract law in China. It is the inheritance of existing laws and regulations such as General Principles of Civil Law, Foreign Economic Contract Law and Technology Contract Law. It should be regarded as the * * * knowledge obtained by authoritative scholars of the two legal systems after full consideration and weighing, which reflects the same trend of the development of contract law, adapts to the needs of strengthening international economic and trade exchanges in China, and is conducive to better international economic and trade exchanges. At the same time, compared with negligence liability, strict liability has obvious advantages, which can facilitate judgment, benefit the litigation economy, benefit the seriousness of the contract, and enhance the responsibility consciousness and legal consciousness of the parties. Strict liability is also more in line with the essence of liability for breach of contract. Therefore, although the corresponding clauses in the Contract Law stipulate the causes of fault liability and exemption clauses, these clauses are only exceptions to the general provisions and cannot change the uniqueness and leading position of the principle of strict liability in the field of contract law.

Keywords: imputation principle, strict liability exemption reason

Liability for breach of contract is one of the most important systems in contract law, which refers to the civil liability that the parties to a contract should bear if they fail to perform their contractual obligations or do not conform to the agreement. The principle of liability for breach of contract is the essence and core content of this system. In China's Contract Law, whether the liability for breach of contract is based on "fault liability" or "strict liability" has attracted the attention of many scholars before and after the promulgation of the Contract Law, and until today, the academic circles are still conducting theoretical discussions. The author briefly analyzes the imputation principle in China's contract law.

The determination of civil liability must follow certain imputation principles. Throughout the civil legislation of various countries, the principle of fault liability or strict liability is mainly adopted in the imputation of contract liability. In contract law, strict liability and fault liability are opposite forms of imputation. It is generally believed that the civil law system follows the traditional fault principle in the late Roman law, emphasizing that contractual liability can only be assumed when there is something attributable to the debtor (that is, fault). If the debtor fails to perform the debt due to reasons not attributable to the debtor, the debtor may be exempted from liability. There are two meanings here: first, the principle of fault liability requires fault as a constituent element to determine responsibility. In other words, to determine the responsibility of the defaulting party, we should not only examine the defaulting behavior of the defaulting party, but also examine the subjective fault of the defaulting party. If the parties are not at fault (such as the breach of contract is caused by an accident), even if there is a breach of contract, the parties will not be liable. Secondly, the principle of fault liability requires fault as the basis for determining the scope of responsibility. That is to say, in the case that the breaching party should bear the liability for breach of contract, the scope of liability that the breaching party should bear should also be determined according to the subjective fault degree of the breaching party. The Anglo-American legal system, on the other hand, pursues the principle of strict liability, which holds that the responsibility of the breaching party should mainly consider whether the breach result is caused by the defendant's behavior, rather than the defendant's intention and negligence. In other words, the identification of responsibility mainly does not consider the fault problem. Generally speaking, strict liability is clearly stipulated by law, not the responsibility agreed by the parties. The purpose of establishing strict liability by law is to reasonably compensate the losses caused to creditors, not to punish the wrong behavior.

China's contract law was formally promulgated in 1999. Article 107 of the Contract Law stipulates: "If a party fails to perform its contractual obligations or fails to meet the contract obligations, it shall bear the liabilities for breach of contract such as continuing to perform, taking remedial measures or compensating for losses". This clause is about the principle of imputation of contract liability. It can be seen from this provision that China's "Contract Law" adopts the principle of strict liability in the principle of liability for breach of contract, which clearly shows the legality of the principle of liability. In the contract law, strict liability is a form of imputation relative to fault liability, which means that in the case of breach of contract, as long as it is not a statutory or agreed exemption, the objective fact of breach of contract itself determines that the breaching party should bear the liability for breach of contract, regardless of whether the breaching party is subjectively at fault or not.

First, the principle of liability in China's contract law

The specific application of the principle of strict liability in China's contract law is clearly stipulated in the general clause 107. Therefore, the principle of strict liability should be the only imputation principle to determine the liability for breach of contract in China's contract law, and it is universally applicable to the contract field without exception. However, there are exceptions in the specific clauses of the Contract Law, such as the clauses that take fault as the condition of liability for breach of contract, which easily lead to a vague understanding of two liability principles in a law.

1. The connotation of strict liability in China's contract law

In China's contract law, strict liability is a form of imputation relative to fault liability, which means that in the case of breach of contract, as long as it is not a statutory or agreed exemption, the objective fact of breach of contract itself determines that the breaching party should bear the liability for breach of contract, regardless of whether the breaching party is subjectively at fault or not. Although most Chinese scholars think that the principle of strict liability is adopted in Article 107 of the Contract Law, there are different opinions on what kind of liability principle is adopted in the whole Contract Law and its understanding. Some people think that strict liability is a kind of no-fault liability, while others think it is absolute liability. Inconsistent understanding of strict liability has deepened people's incomprehension and even exclusion psychology to a certain extent, so it is necessary to clarify the relationship between strict liability and other similar concepts. In my humble opinion, strict liability is an independent imputation form different from absolute liability and no-fault liability. First of all, although strict liability does not regard the debtor's fault as an important element of liability, it does not completely rule out fault. On the one hand, it contains the fault of the actor to the maximum extent, and of course it also includes the case of no fault; On the other hand, although the debtor's fault is not considered, the creditor's fault is not ignored. If the contract cannot be performed due to the creditor's reasons, it will often become the reason why the debtor can be exempted or reduced. It can be seen that although strict liability is often called "no-fault liability" by Chinese scholars, it is different from the no-fault liability in tort law, and neither the fault of the offender nor the fault (negligence) of the victim is considered. Second, strict responsibility is strict, but not absolute. This distinguishes it from absolute responsibility. The so-called absolute liability means that the debtor should bear absolute liability for his debts, regardless of whether he is at fault or not, and whether it is due to external reasons. Strict liability was once the absolute liability in the classical contract theory of Britain and America in the19th century. Later, there were exemptions such as late failure, so strict but not absolute strict liability appeared.

2. China's contract law regards fault as the cause of liability.

In the field of civil law in China, some scholars still advocate that the principle of fault liability should be adopted in the imputation of contract law for the following reasons: 1. According to the explanation of the third paragraph of Article 106 of General Principles of Civil Law, we can draw a conclusion that fault liability has been stipulated as the principle of liability for breach of contract in China's civil law; 2. The principle of fault is indispensable for respecting personality. If the principle of fault liability is abandoned, the principle status of party autonomy will be difficult to protect in the end. Looking at the sub-clauses of the contract law again, there are the following types of fault problems: (1) The debtor will only bear the responsibility if it intentionally or grossly neglects to cause damage to the other party. This kind of contract is mainly free of charge, such as the gift contract, free custody contract and free entrustment contract stipulated in Articles 189, 19 1, 374 and 406 of the Contract Law. (2) If the debtor's fault causes damage to the other party, it shall be liable for damages. For example, the provisions of Articles 303 and 320 of the Contract Law. These provisions clearly stipulate that the debtor will bear the responsibility only if there is fault, and will not bear the responsibility if there is no fault, and the word "fault" appears directly. (3) The debtor's fault causes damage to the other party. The word fault does not appear in the contract law, but it exists subjectively. For example, in the custody contract and warehousing contract in Articles 374 and 394 of the Contract Law, poor custody by the custodian means that the custodian is at fault and should be liable for breach of contract. For the above situation, we can explain that fault is the cause of responsibility.

3. Strict liability exemption in China's contract law.

Under strict liability, it does not mean that the debtor will be responsible for the damage caused by its non-performance of debts under any circumstances. Under the following circumstances, the debtor may raise a specific defense or exemption according to law: (1) Force Majeure. Force majeure, as a statutory exemption, refers to "unforeseeable, unavoidable and insurmountable objective circumstances", which usually includes natural disasters, wars and the exercise of legislative, judicial and administrative functions by the state. Although this situation leads to the occurrence of damage consequences, the debtor is not liable for breach of contract because there is no causal relationship between the debtor's behavior and the occurrence of damage. However, the occurrence of force majeure is not a complete and absolute exemption. According to the provisions of the Contract Law, if a party is unable to perform the contract due to force majeure, it shall notify the other party in time to reduce the possible losses to the other party, and shall provide proof within a reasonable time. (2) The fault of the creditor. If the debtor fails to perform the contract due to the fault of the creditor, the debtor shall not be liable for breach of contract. For example, Article 302 of the Contract Law stipulates that in the passenger transport contract, the carrier shall be liable for damages for personal injury or death caused by the passenger's own health or the carrier proves that the passenger caused personal injury or death intentionally or through gross negligence. There are also articles 3 1 1 (freight contract), 370 (custody contract) and 259, paragraph 2 (contract) of the contract law. (3) Other statutory exemptions. There are two main types: first, the debtor can be exempted from the responsibility for the natural loss of the subject matter. This situation often occurs in transportation contracts, such as Article 3 1 1 of the Contract Law. In a freight contract, if the carrier can prove that the damage or loss of the goods is caused by the natural nature or reasonable wear and tear of the goods, the carrier shall not be liable for compensation. Second, if the observant party fails to take appropriate measures, resulting in increased losses, the debtor shall be exempted from the liability for the increased losses, as stipulated in Article 1 19 of China's Contract Law. (4) Exemption clauses stipulated in the contract. Although contractual liability is as mandatory as other civil liabilities, its nature and compensation reflect that it is more "private" as a responsibility in private law, so its provisions are not mandatory norms but arbitrary norms. If the parties voluntarily agree to exempt from contractual liability, there is no need for the law to intervene forcibly. Therefore, most countries allow the parties to be exempted from contract liability by agreement within the scope permitted by law, and our contract law also clearly affirms this. However, if the exemption clause is not properly applied, it will cause great unfairness to creditors, and then endanger the realization of social justice, which is particularly obvious in standard contracts. In this respect, the contract law, like other countries, also imposes necessary restrictions on the exemption clause: First, the exemption clause shall not exclude the application of mandatory legal norms, such as the provisions on the effective elements of civil legal acts, otherwise the exemption clause will be invalid. Second, the exemption clause does not exclude the civil liability for causing personal injury to the other party; Third, the exemption clause shall not exclude the liability for intentional or gross negligence.

Second, China's Contract Law defines the principle of liability for breach of contract as the rationality of strict liability.

1. is the inheritance of the existing legal provisions and also meets the needs of the development trend of contract law.

In the current contract law, both foreign-related economic contract law and technology contract law have established no-fault liability. Article 18 of the former stipulates that if one party fails to perform the contract or fails to meet the agreed conditions, that is, it violates the contract, and the other party has the right to claim damages or take other reasonable remedial measures. If the losses suffered by the other party cannot be fully compensated after taking other remedial measures, the other party still has the right to claim compensation for the losses. The latter article 17 also has basically the same provisions. The definition of liability for breach of contract as liability without fault seems to have a precedent in the history of contract law in China, and it is not the first in the new contract law. The United Nations Convention on Contracts for the International Sale of Goods and the General Principles of International Commercial Contracts, which are of great reference value to the formulation of contract law, both stipulate the principle of strict liability, and the newly formulated Principles of European Contract Law also affirm this principle, "which should be regarded as the * * * understanding obtained by authoritative scholars of the two legal systems after full consideration and weighing, reflecting the same trend of contract law development". ① In the rules of international business communication, the principle of no-fault liability is mostly adopted. The English court passed Paradine v. Jane and Alien (Paradine v. Jane, Aleyn, 1647), and the liability for breach of contract was strict. In this case, a farmer cultivated the land of a landlord, and according to the agreement, the farmer should pay a certain amount of land rent on time. In the year of the crime, the army led by Prince Prut occupied this place.

Note (1): See Liang Huixing's Research on Civil Law Theory, Jurisprudence and Legislation (II), National School of Administration Press, 1999, p. 158.

A piece of land and expel farmers from this land, resulting in farmers unable to cultivate, natural grain harvest, can not afford to pay rent. The landlord appealed to the court and the farmer lost. The liability for breach of contract established in this case is very strict, and even if force majeure occurs, it cannot be exempted. As stated in the judgment of this case: "When a party sets an obligation or responsibility for himself according to his own contract, he has the obligation to complete it. As long as he can do it, no matter what kind of accident occurs, it is inevitable, because in this case, he could have agreed in the contract without taking the obligation. Therefore, if the lessee promises to repair the house, he should still repair the house, even if the house is burned by lightning or demolished by the enemy. " Later, in the development of Anglo-American contract law, force majeure and the exemption agreed by the parties were gradually recognized. Today, Anglo-American contract law still pursues the principle of no-fault liability. In his article, Mr. Liang Huixing thinks that if the adoption of strict liability in the United Nations Convention on Contracts for the International Sale of Goods is influenced by Anglo-American law, then the General Principles of International Commercial Contracts and the Principles of European Uniform Contract Law are the understandings of authoritative scholars in the two legal systems after full consideration and weighing, reflecting the development trend of contract law (note: "From fault liability to strict liability", see the first part of the Civil and Commercial Law. )。

2. Strict liability has obvious advantages compared with fault liability.

In litigation, the plaintiff only needs to prove to the court the fact that the defendant has not fulfilled his contractual obligations, and does not need to prove that the defendant is right.

Failure to perform is at fault, and the defendant is not required to prove that he is not at fault. The logic here is that there is a breach of contract and a responsibility.

The composition of the liability for breach of contract is only non-performance, and whether the defendant is at fault for non-performance has nothing to do with the liability. The only possibility of exemption is to prove the existence of exemption. Non-performance and exemption are objective facts, and it is relatively easy to prove and judge their existence, while fault belongs to subjective psychological state, and it is relatively difficult to prove and judge their existence. Therefore, the realization of the principle of strict liability is beneficial to the judgment, the litigation economy, the seriousness of the contract and the enhancement of the parties' sense of responsibility and law.

3. Strict liability is more in line with the essence of liability for breach of contract.

Liability for breach of contract is based on the existence of legal and effective contractual relationship. The contract was freely negotiated and signed by both parties, which of course fully conforms to the wishes and interests of both parties. The liability for breach of contract is transformed from contractual obligations, which is essentially agreed by both parties rather than legally enforced, and is different from tort liability. Therefore, the liability for breach of contract should be stricter than that for tort. Tort liability occurs between parties who have no close contact in advance, and the widespread conflict of rights makes it difficult to completely avoid the development of damage. Therefore, the law requires that there should be fault elements in addition to damage facts, and fault is equivalent to imputability, which makes tort liability reasonable and convincing. The liability for breach of contract is essentially due to the agreement of the parties themselves, which is enough to make the liability for breach of contract fully reasonable and convincing, without requiring other reasons to make the liability for breach of contract reasonable and convincing. Some scholars believe that strict liability is unfair to debtors in case of accidents. The author believes that due to objective reasons, the breaching party is of course not at fault subjectively, but the injured party is even more at fault. And the creditor's trust in the debtor's promise will often change his situation. If the debtor is exempted from the liability for breach of contract blindly, it is tantamount to letting the creditor bear the risk on its own, which is obviously more unreasonable.

Third, suggestions to improve the principle of liability fixation in China's contract law.

1. In China's contract law, the principle of strict liability should be clearly regarded as the basic principle of imputation.

Civil legislation in various countries mainly adopts the principle of fault liability or strict liability (also known as no-fault liability) in terms of the principle of imputation of contract liability. The determination of different imputation principles plays a decisive role in the content of the liability system for breach of contract. In contract law, strict liability and fault liability are opposite forms of imputation. It is generally believed that the civil law system follows the traditional fault principle in the later period of Roman law, emphasizing that the contract liability can only be assumed if there is something attributable to the debtor (that is, fault), and the debtor can be exempted from liability when the debt cannot be performed due to something not attributable to the debtor; Anglo-American legal system pursues the principle of strict liability, and holds that as long as there is no statutory exemption, the parties will violate it.

After the contract is signed, you should be liable for damages, and subjective no-fault cannot be a defense.

China's contract law has established the principle of strict liability. Of course, there are also cases of fault liability as a supplement. The principle of strict liability is clearly stipulated in the general principles of contract law in China, which is the imputation principle of liability for breach of contract and has universal significance in the application of contract law. But at the same time, we can also see that in the specific provisions of the Contract Law, subjective psychological concepts such as "intention", "gross negligence" and "fault" are used in many places, stipulating that one party shall bear or not bear civil liability for these subjective factors. Although there are no faults in some clauses of the Contract Law,

Note (2): See Liang Huixing: On Civil and Commercial Law, Volume 9, Law Press, 1998, pp. 27-28.

For example, the words "but subjective fault is required" are partly the fault of creditors, but mostly the fault of debtors, so fault liability should be applied as the basis of imputation. In other words, in fact, there is also fault liability in China's contract law. However, this kind of fault liability mainly appears in the specific provisions and only applies when there are special provisions in the specific provisions. That is to say, China's contract law adopts the principle system of strict responsibility monism, and the situation of taking fault responsibility as the imputation principle only appears in the specific provisions; Fault liability can only be applied if there are special provisions in the law, and strict liability can be applied if there are no special provisions.

2. Introduce the principle of strict liability as the imputation principle of liability for breach of contract in other laws related to contract law to adjust the legal relationship of contracts.

Laws such as Foreign Economic Contract Law, Technology Contract Law and Economic Contract Law have become invalid after the implementation of China's contract law, but in these laws, the principle of strict liability is basically established as the principle of liability for breach of contract. It is precisely because of this situation in the past that China's contract law basically established its liability principle when it was formulated. In the future social development process, more and more new contractual legal relations will inevitably appear, and the lag of law will inevitably make these new legal relations unable to be adjusted. In this case, it can only be adjusted by jurisprudence, that is to say, in this case, the legal position of the principle of strict liability must be adhered to. Even if new laws are enacted to regulate this legal relationship in the future, the principle of strict liability should be embodied as the basic principle of liability for breach of contract. Only in this way can the strict liability principle be established as the basic liability principle in the field of contract law.

3. Take fault liability as a supplement to the principle of strict liability imputation.

Under the principle of strict liability, if there is no limitation on the debtor's liability, it will be too harsh on the debtor. This will limit people's enthusiasm for participating in trading activities and is not conducive to social and economic development. Therefore, under the premise of adhering to the principle of strict liability, fault liability should be applied according to the special provisions of the contract law. The principle of imputation is closely related to the cause of imputation. The principle of imputation is the premise of determining the cause of imputation, and the established principle of imputation is generally embodied by the cause of imputation. But at the same time, it plays a supplementary role in the principle of imputation as the specific cause of imputation. Obviously, the principle of imputation is a general value concept about evaluating the liability for breach of contract, which is usually a single subjective standard, while the cause of imputation is usually specific rules and standards with operability, and its application object is specific and its application scope is relatively narrow. It is mainly to solve the judgment standard of responsibility attribution under specific circumstances, which is usually multiple, both subjective and objective. In the principle of strict liability imputation, fault can appear as the cause of imputation. But the imputation here is only a supplement to the imputation principle, and it cannot grow into an independent imputation principle. The principle of strict liability in China's contract law does not completely rule out fault, which is different from liability without fault. Therefore, it is suggested that the principle of strict liability should be clearly applied in the provisions of the principle of liability in China's Contract Law, and taking fault as the cause of liability is a supplement to the principle of overall liability, which can only be applied if the law clearly stipulates it.

4. Exemption is an exception to the principle of strict liability imputation.

Strict liability is different from fault liability. Fault is a positive concept, which tells us the necessary conditions for imputation. Strict liability is a negative concept, which tells us that liability can exist without fault and can be exempted from liability through legally recognized exemptions. Therefore, under what circumstances can be exempted from liability has become an extremely important issue in the principle of strict liability. Exemption is the reason and reason for exempting the breaching party from liability for breach of contract, which usually exists in two ways: one is the reason for exempting liability stipulated by law, which is called statutory exemption; The second is the exemption reason agreed in the contract, which is called agreed exemption reason. The principle of imputation and the cause of imputation aim to determine the basis for the breaching party, that is, the debtor to bear the factual consequences of breach of contract, while the cause of exemption lies in establishing the conditions for the debtor not to bear the factual consequences of breach of contract. As an aspect of the liability for breach of contract in contract law, the exemption is specific and limited, and does not affect the principle of overall liability. It is suggested that it is an exception to the principle of strict liability imputation to clarify the reasons for exemption in the contract law.

To sum up, the author believes that the principle of imputation has different meanings from the reasons of imputation and exemption. The principle of imputation is the legislative guiding principle that runs through the whole system of liability for breach of contract and plays a leading role in the norms of liability. There cannot be two contradictory imputation principles in the same legal field at the same time. Strict liability principle is the only imputation principle in the field of contract law in China. Although the corresponding clauses in contract law stipulate the causes of fault liability and exemption clauses, these clauses are only exceptions to the general provisions and cannot change the uniqueness and leading position of strict liability principle in the field of contract law.

References:

1. Li Yongjun, Principles of Contract Law, China People's Public Security University Press, 2002/02.

2. Wang Liming and Cui Jianyuan, General Introduction to the New Theory of Contract Law, China University of Political Science and Law Press 2003/1/.

3. Ye Lin, Liability for Breach of Contract and Comparative Study, Renmin University of China Press, 2004/06.

4. Zhai Yunling, General Theory of Contract Law, China People's Public Security University Press 200105.

5. Tian, on the principle of strict liability in China's contract law, in Hebei Law, 03, 2000.

6. Qian Xiaoying, WTO and the principle of liability for breach of contract law, Journal of Hunan Public Security College, 02, 2000.

7. Ji Cheng, "Rethinking the Principle of Liability for Breach of Contract Law in China"/

/There are many here.