加害给付的重新界定及法律救济

从我国固有的法律制度出发,加害给付应界定为:债务人的履行不符合合同约定的质量标准,并侵害债权人履行利益以外的人身、财产利益的行为。其构成要件:债务人依有效合同作出了履行;债务人的履行有瑕疵;瑕疵履行造成债权人固有利益的损害;瑕疵履行无免责事由。为了充分救济加害给付对债权人造成的损害,建议在我国《合同法》第122条增加一款作为第2款,其内容为:当事人一方的履行不符合约定的质量标准,侵害对方人身、财产权益的,受损害方可以依照本法要求其承担违约责任。其他未补偿的损害,受损害方还有权依照其他法律要求其承担侵权责任。

Inflict delivery's redefinition and law relief

According to inherent legal system in our country, harmful performance should be defined as the debtor's performance which does not conform to the contract requirement, and violates the creditor's personal or property interests beyond the performance interests. Its requirements are: The debtor has made the performance according to the valid contract; Debtor's performance has defect; The defective performance creates harmness to the creditor inherent interests; The defective performance does not exempt the debtor from responsibility. In order to provide legal relief thoroughly to the creditor, this essay suggests our country's "Law of contract" supply one more section as the 2nd one in the 122nd article. That is: Any litigant's performance does not conform to the contract requirement and violates the opposite party's personal or property rights and interests, the party that has incurred a detriment has the rights to furnish a claim to the violator to undertake repudiation responsibility according to this law. The creditor has the rights to claim other compensation to the debtor according to other laws that request the debtor to undertake infringement responsibility.