Studies on Issues of International Private Law with Respect to Injuring Pacare
|School||Southwest University of Political Science|
|Keywords||coincidence of liabilities foreign-related injuring pacare qualification choice and application of law improvement of legislation|
Injuring pacare as a concept brought forth in the modern time is a commonphenomenon of our daily lives occurring through the coincidence of liabilitiesbetween breach of contract and tort. In substance, this common phenomenondemands a proper way to allocate liabilities leading either to only one liability orboth and offer relieves while coincidence of liabilities between breach ofcontract and tort happen, on one hand, the object of the contract delivered to theother party has defects which in turn has constituted breaching of contract; onthe other hand, such defect delivery has caused damages to the inherent interestsof the receiving party which in turn has constituted a activities of tort. Thecoincidence of liabilities between breach of contract and tort is a result of theinteraction between the law of tort and the law of contract through history.Although this phenomenon was considered as an issue of mere domestic law,the way we allocate the liabilities between breach of contract and tort will hastremendous impact on international private law, thus a study of such impact is a necessary thing to the improvement of private law.The history of injuring pacare and the qualification and law application inforeign-related injuring pacare are the breakthrough point of the discourse, theessay intends to discourse the way to improve the legal practice and legislationfor international private law in respect of foreign-related injuring pacare issue,and to develop the useful and discard the useless of exiting legal practicethrough analyzing current situation of our law on logic ground. This essay willdivide into four parts.The first part aims to outline the theory of injuring pacare in a broad manner.The theory of injuring pacare is originated from German, in this part the authorwill first present the “preexisting” theory of injuring pacare——the theory ofinfringing the rights of creditor in a positive way, thereafter the author willfurther present the introduce and studies of injuring pacare theory in Japan andTaiwan regions, and analyze the regulation of the mainland law with respect tothe injuring pacare activities.The second part of this essay is about the qualification in foreign-related injuring pacare. In this part, the author will elaborate the general concepts andfundamental issues of qualification in international private law, specificallydiscourse the qualification issue that may occur in foreign-related injuringpacare activities through historical analysis, and propose the viewpoint in theend.The third part of this essay is about the choice and application of law inforeign-related injuring pacare. As a view shared by the author, the chose andapplication of law reflect the value orientation of a country, but as the timeflows, the current law which was rigidly designed has failed to adapt flexibilityas demanding by the economy development. Thus the author propose that, whenconfronting to the chose and application of law in foreign-related injuring pacare,we shall make analyses on the ground of the character of respective issues,wherein the judge shall not blindly apply either the closest contact doctrine orthe preference of injured party doctrine.The fourth part of this essay is about the advice on improvement ofregulations and laws in respect of foreign-related injuring pacare, wherein the author will discourse the substantive and adjective regulations of internationaltreaty relating to injuring pacare and thereafter bring forth viewpoint aftercomparing the difference between those regulations and domestic law andanalyzing the defects of the later.