违约归责原则比较研究  

A Comparative Study on Liability Criterion for Breach

作　　者：肖燕[1] 

机构地区：[1]浙江大学法律系,浙江杭州310028

出　　处：《浙江大学学报（人文社会科学版）》2004年第2期60-66,共7页Journal of Zhejiang University:Humanities and Social Sciences

摘　　要：违约归责原则有严格责任与过错责任之分。大陆法系与英法法系在各自的发展历史中形成了不同的归责体系,分别有其优点与不足。由于共同的经济基础以及历史的作用,19世纪以来,两大归责原则互相兼收并蓄,呈现不断融合的趋势。回顺我国20世纪80年代以来的合同立法,有一个从崇尚绝对过错责任到强调绝对严格责任的过程。但是单一的归责制度存在不可克服的缺陷,归责原则二元化符合法律追求公平的价值目标。它在比较妥善地维护合同当事人合法权利的同时,还降低了法律的运行成本并完善了合同法的体系,体现了现代民法从形式公平向实质公平的发展趋势。There exist two different types of liability criterions for breach in contract law: strict liability and fault liability, which developed respectively in common the law system and civil law system. Strict liability makes a party responsible for breaching the contract, regardless of any 'fault' on its part. It comes from the old doctrine of pucta sunt servanda, and makes every effort to enforce the contract. Fault liability can only be enforced if proved beyond reasonable doubt that the party' s contravention was intentional or reckless. Intrinsic factors work under this doctrine, so the parties are forced to behave in good faith. Though each of them has its own advantages and disadvantages, both act perfectly in their own law system in early days. However, when new problems arise along with social development, they are no longer suitable for different situations. Since the 19th Century, each principle began to assimilate the other's strong point and to offset its weakness. Lots of new institutions were born to settle new disputes. In the civil law system, people created theories like the so - called subjective impossibility, and at the same time set down special provisions for some special contracts. In the common law system, it is frustration and implied terms that were developed to meet the new situation. All of these indicate clearly that the two criterions are combining and fusing into a dualistic system. Looking back into the history of the Chinese contract legislation, it appears that the focus of the liability criterion for breach has changed since 1980s from fault liability to strict liability. Some scholars even think that China has completely adopted strict liability for the breach of contract. However, we should realize that the sole criterion system for liability has had its own unavoidable shortcomings. It gives no attention to the levity of practice and cannot therefore satisfy various needs in true - life. Compared with the sole liability criterion system, the dualistic o

关 键 词：严格责任 过错责任 归责原则二元化 

分 类 号：D913[政治法律—民商法学]