合同法上赔偿损失的请求权基础规范分析

An Analysis of the Right of Claim for Compensation in Contract Law

我国合同法上规定有许多赔偿责任,但这些赔偿责任的规范基础不尽相同:有的以传统民法上的违约责任为规范基础,比如第97条规定的合同解除后的赔偿责任、第108条规定的逾期违约后的赔偿责任、第110条规定的继续履行后的赔偿责任、第107条及113条规定的赔偿责任等;有的则属于独立的责任规范基础,例如第42条、43条、58条等属于缔约过失责任规范的范畴;第122条属于加害给付的范畴。第48条规定的无权代理人的赔偿责任之请求权基础应解释为缔约过失更为合理;第406条及425条规定的赔偿责任制规范基础解释为违约责任更为合适。第189条的赔偿责任实际上是赠与合同不能履行的赔偿责任,属于违约责任;第191条规定的赔偿责任中。

China＇s contract law provides that there are many kinds of liability to pay compensation,but the basis of these liability is not the same： some of them is based on the liability for breach of contract that just like in the traditional civil law,such as the liability that after lifting the contract which stipulated in provisions of Article 97,the overdue liability under breach of contract which stipulated in provisions of Article 108,the compensation liability after the continued performance of the 110 th provision,and the 107 th and 113 compensation liability,etc; Others are based on independent liability rules,such as articles 42,43,58,etc,and these provisions above belong to the Liability for Contracting Fault; at the same time,the article 122 belongs to Injury Performance. combining the provisions of the China＇s Contract Law and the General Principles of Civil Law,the basis of the claim for liability under the provisions of article 48 th is more reasonable to interpret it as the liability for contracting fault. the Anspruchsgrundlage of Article 406 and 425 is more appropriate to explain the liability for breach of contract; The nature of the normative basis of the compensation liability of the donor under the 189 th and 191 provisions should be understood separately. The liability in article 189 is actually the liability to pay compensation that the contract can not be performed,belonging to the liability of breaching contract;In article 191 th,if the donor deliberately do not inform the donee the defects of the object of gitf,that caused the donee＇s damage,the liability is a Co-opetition of tort liability and injuring performance; On the other hand,if it is ensured no defect and finally caused the donee＇s damage,the nature of liability is injuring performance.