对加害给付概念与救济的再思考

Reconsideration on Concept and Remedy for Injury Performance

加害给付是合同一方当事人侵害对方当事人固有利益的违约行为,构成违约责任与侵权责任竞合,受损害方有权在二者中选择其一保护其利益。这是我国关于加害给付的主导观点,其影响了我国合同法第122条。然而,这种观点是否得当颇值商榷。加害给付应为债务人有责违反合同义务,给债权人造成履行利益以外的人身、财产利益损害并不排除可能同时侵害债权人履行利益的行为;对于加害给付的救济并非只能依据合同法第122条规定的责任竞合来处理,而应根据加害给付侵害的利益区别对待。

Key words： Injury performance that is the breach of contract by the party infringes upon the other＇ s inherent interests, causing the concurrent liabilities for breach of contract and torts, the aggrieved party shall be entitled to make a choice between two liabilities for protecting his fights. This viewpoint, which remains the mainstream of juristic opinions on injury performance in China, has got effects on Article 122 of the Chinese Contract Law. But such viewpoint is partial. Injury performance should be defined as breach of contract by the obligor who committed his faults for the breach contract infringes upon other＇ s personal or property fights to the exclusion of performance interests, including the possibility that the obligor infringes upon other＇s performance interests. Not all the remedies for injury performance should be dealt with in accordance with Article 122, but be treated differently according to the injury performance infringing the fights.