违约与侵权竞合实益之反思

Reflection on the Practical Benefit of Concurrence between Liability for Breaching Contract and Tort

违约与侵权竞合主要有两类:加害给付型和违反保护义务型。在后者以及在前者的违反手段义务场合,违约责任为一般过错责任,与一般侵权责任相同;违反结果义务时,因产品责任等特殊侵权情形,违约与侵权多数为严格责任,二者的归责与证明责任亦同。从损害赔偿范围看,二者均通过客观概率论配合法价值判断来限定因果关系,都允许精神损害赔偿。在诉讼时效上,无论从体系解释还是文义解释,均得不出违约和侵权二者之间存在一般性差异。另外,二者均采纳相同的责任缓和规则。总体而言,违约与侵权在竞合时两种责任差异极小,其竞合实益较为有限。

There are mainly two types of concurrence between liability for breach of contract and tort;injuring performance and breach of the obligation to protect the other party.In the latter,and in occasion of breach of the obligation of means,liability for breach of contract is one of general fault liabilities,which is the same for general tort liability.In case of breaching an obligation of result,due to the existence of product liability and other special tort,breach of contract and tort of strict liability are the same most of the time,as well as the burden of proof of liability.From the perspective of damages,they establish causal relationship with the law on value judgments by objective probability,and are allowed to mental damages.On the statute of limitations,in terms of systematic interpretation or literal interpretation,no general differences exist between breach of contract and tort.In addition,they adopt the same responsibilities to ease the rules.Overall,breach of contract and tort liability have only very small differences when they are concurrent,therefore,the practical benefit between them is rather limited.