加害给付分析-民商法学专业论文.docxVIP

3 3 该制度，本文认为我国应借鉴该制度，对加害给付当事人之外的第三人提 供契约法上的保护。产品责任与加害给付关系密切，但两者并不等同，通 过分析产品责任的不同情形，厘清了在产品责任中，当赔偿权利主体是买 受人或者买受人之外的第三人，赔偿义务主体是销售者时，适才有加害给 付制度的运用。 关键词：加害给付、责任竞合、精神损害赔偿、产品责任 PAGE PAGE 1 Abstract Injuring performance is one manifestation of the extension of contract law system which exists between both parties to a contract. It means the debtor’s inconsistent performance of a contract with the original purpose of contract will damage the creditors performance interest and inherent interest. According to the dual division system of traditional civil liability, both kinds of the interest are protected respectively by contract law and tort law, but the complexity of social life makes it impossible to implement the dual division system of traditional civil liability thoroughly. Under the condition of injuring performance, in order to strengthen the protection of the creditor’s interest, the general attention duty in tort law is integrated into the protection of the individual attention duty in contract law, namely the inherent interest is integrated into the protection of contract law . The protection of inherent interest is considered to be the basic function of injuring performance. The theory of injuring performance makes the theory of liabilities concurrence more possible and also promotes its development. Our country complies with this trend of development, studies international advanced experience, and begins to be clearer in attitude toward injuring performance in the judicature and the legislation. But in the scientific theory, it is necessary to make the following points clearer, constructive requirements and legal consequence of injuring performance, the using of liabilities concurrence, and the correlation between product liability and injuring performance. This article sorts out the causes of the theory of positive infringement upon creditor’s rights and incomplete fulfillment system through methods of historical research and comparison. It makes clear the sta