A Comparative Study on the Theories of Overlapping Civil Claim Between Taiwan and China-Focus on Overlapping Responsibilities for Contract and Tort

• Main Authors: Hung-shu Chen, 陳虹淑
• Other Authors: Yang-Shou Huang
• Format: Others
• Language: zh-TW
• Published: 2006
• Online Access: http://ndltd.ncl.edu.tw/handle/82850936121463887753

碩士 === 東吳大學 === 法律學系 === 94 === Abstract The overlapping responsibilities for contract and tort have been an issue of Civil law for a long time. The solution of this issue is still under developing in legal practice. And, there is no definite conclusion yet. To solve this issue, the Civil law scholars basically formulated two theories: the “theory of overlapping civil claims” and the “theory of overlapping civil statutes.” In French, both the majority scholars and the precedents insisted following the “theory of overlapping civil statutes.” However, the leading German scholar, Larenz, formulated the “theory of overlapping civil claims and overlapping civil statues.” And, Japanese scholars formulated four different theories for this issue. While solving this issue, the relationship between the substance law and the procedure law has to be considered. In other words, the court should solve the problems between the parties in one litigation by applying proper theory for overlapping civil claims. Therefore, this article attempts to discuss the cross-Strait development of theories and court opinions regarding this issue and will provide conclusive suggestions to perfect the Civil Law and Civil Procedure Law of China.