加害给付请求权竞合之探讨: 成立要件及法律效果

请求权竞合理论有三种,即法条竞合说、请求权竞合说和请求权规范竞合说。根据学理和实务,采请求权竞合说中的自由竞合说较妥。加害给付的构成要件中违反法定义务不构成加害给付,违约行为仅引起固有利益损害亦构成加害给付。加害给付引起的违约责任和侵权责任竞合的是固有利益损害部分。就竞合部分,当事人可依据《合同法》第122条,斟酌具体情况选择通过违约责任或侵权责任主张权利。加害给付引起的履行利益损失和固有利益损害是聚合关系,当事人可依据《合同法》第112条一并主张。

Discussion on concurrence of right of claim for injuring performance: elements of establishment and legal effect

There are three theories of concurrence of claims, namely, the concurrence of legal provisions, the concurrence of claims and the concurrence of claims norms. According to the theory and practice, it is more appropriate to adopt the theory of free concurrence in concurrence of claims. The violation of legal obligations in the constitutive requirements of injury performance does not constitute injury performance, while the breach of contract only causing damage to inherent interests also constitutes injury performance. The concurrence part of breach of contract caused by injury performance and tort liability is the damage part of inherent interest. Aimed at the concurrence part, the right can be claimed through the liability for breach of contract or tort liability selectively by considering the specific situation of the parties according to Article 122 of the Contract Law. It is aggregation relationship between the loss of performance interest caused by injuring performance and the damage of inherent interest, which can be claimed together by the parties according to Article 112 of the Contract Law.