摘要(Abstract)：
The concurrence of legal relations refers to the concurrence of relative legal relations between civil subjects in two different legal fields due to the same legal fact. The forms of concurrence can be classified as contrary concurrence,selective concurrence and parallel concurrence,all of which are based on payment terms.Contrary concurrence is the concurrence of mutual payments between interested subjects in two legal relations. Selective concurrence is the concurrence that only one of the payments of the subjects concerning two or more legal relations can be achieved. Parallel concurrence is the concurrence that the payments of the subjects concerning two or more legal relations can be achieved at the same time rather than being in conflict with one another. The classification of the forms of concurrence provides a specific perspective for the observation of the formation( emerging,transferring and terminating) of the right and obligation relations between parties involved.
关键词(KeyWords)：
Abstract:
Keywords:
基金项目(Foundation): one phase of a Philosophy and Social Science Research Project of the Minisitry of Education(08JHQ0004),entitled On the Usufructuary Obligations
作者(Author): 隋彭生;Li Xiaoning;Li Chao;
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参考文献(References)：
- LI XIHE,PAPERS ON PHILOSOPHY OF CIVIL LAW,at 179(Fudan University Press,2009).
- ZHANG WENXIAN,STUDY ON THE BASIC SCOPE OF LEGAL SCIENCE,at 166,167(China University of Political Science and Law Press,1993).
- Article 4(1)of the Tort Liability Law of the People’s Republic of China stipulates:“Where a tortfeasor shall assume administrative liability or criminal liability for the same conduct,it shall not prejudice the tort liability that the tortfeasor shall legally assume.Where the assets of a tortfeasor are not adequate for payments for the tort liability and administrative liability or criminal liability for the same conduct,the tortfeasor shall first assume the tort liability.
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- Article 239 of Property Rights Law of the People’s Republic of China stipulates tha,t“The lienor has the right to seek preferred payments in case the right to mortgage or the right of pledge has been established on a chattel before it is taken as lien.”Some scholars explain it as concurrency.See He Yaowu,An Analysis of Concurrence among the Right of Lien,Mortgage and Pledge—Also A Commentary of Article 239 of Property Law,2 Liaoning FazhiYanjiu 19,19-23,2008.
- There are narrow concept and wide concept of contracts related to a third party.In the narrow concept,a legal relation is established between one part and a third party,e.g.escrow contract.In escrow contract,the escrow authority not only forms a legal relation with the one who submit the property(obligor),but also with obligee.This is concurrency.Although the wide concept involves a third party,the third party does not enter into a new legal relation due to that contract,so it is not concurrency.
- For instance,contract of pledge is an obligation contract,and the lienor has the right of claiming for obligation,in other words,has the right to ask the pledger to establish a lien via delivenng a pledge.
- In regard to“usufructuary legal relations”,See Sui Pengsheng,Usufructuary Legal Relation:Summation of a New Theory,1 Journal of Tsinghua University(Philosophy and Social Sciences)133,133-141,2010.
- In academia,most scholars diviole legal relations into absolute legal relation and relative legal relation according to the scope of obligor.There is no paper divides according to object yet.See WANG LIMING,GUO MINGRUI&FANG LIUFANG,A NEW DISCUSS OF CIVIL LAW(VOLUME ONE)at 111,112(China University of Political Science and Law Press,1988);PENG WANLIN,SCIENCE OF CIVIL LAW,at 56(China University of Political Science and Law Press,2002);and so on.
- Single legal relation(einfaches Rechtsvererhltnis)has single right and obligation relation,that is to say,one party only enjoys right while the other party only bears obligation,e.g.the pure gift relation.See SHI QIYANG,GENERAL PRINCIPLES OF CIVIL LAW,at 24(China Legal Publishing House,2010).
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- “In the abstract legal form,the rights and obligations of the participants regulated by law are the independent contents of legal relation.These rights and obligations are just abstract possibilities.Only if the fact regulated by law occurs,the two parties can form civil legal relations with rights and obligations.At that time,the abstract possible rights and obligations turn to concrete ones.See YAN YIMEI,supra note 5,85 and 86.The legal relation discussed in this paper is all formed by concrete legal facts.
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- Id.
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- One regulation on right of claim excludes the other,so only one can be applied.The first situation is that the regulation which excludes the other is a special law(lex specialis)compared with the other one.This is called as regulation exclusive concurrence.See KARL LARENZ(Germany),A GENERAL SURVEY OF GERMAN CIVIL LAW,at 348-349(Wang Xiaoye et al.trans.,The Law Press,2003).
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- Article 150 of China’s Contract Law stipulates“the seller shall,in respect of the object delivered,assume the obligation to guarantee that no third party may claim any right to the buyer,except as otherwise stipulated by law.”
- The writer believes that bilateral contract and onerous contract are the different descriptions of consideration exchange contract.That is to say,bilateral contract is also a voluntary contract.
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- LI XIHE,supra note 1,180.
- The legal fact which causes the emergence,change and termination of civil legal relation is called as simple legal fact.If they are caused by two or more legal facts,the facts are called as complex legal facts or composition of legal facts.See YAN YIMEI,supra note 5,101.
- Dual typical agreement(Doppeltypische Vertrage,Gekoppelte Vertrage)or called hybrid agreement(Zwittervertrage)refers to the contract in which the parties bears different types of prestation.See WANG ZEJIAN,THE PRINCIPLES OF LAW ON OBLIGATION(VOLUME ONE),at 114(The China University of Political Science and Law Press,2001).
- LI XIHE,supra note 1,180-181.
- Offset can be classified as statutory offset and will offset.In statutory offset,one party has right to inform the other to offset.The payments are the same kind.But in the will legal relation,the contrary payments are not in the same kind.The condition of statutory offset cannot be reached.Will offset perform under the offset contract.For will legal relation,there is also no will offset.If the payment needs to be offset,the parties can relieve the contract according to law.
- WANG ZEJIAN,supra note 28,VOLUME TWO,268.
- Article 245 of the Property Law of the People’s Republic of China stipulates“Where a realty or chattel under possession is encroached on,the possessor has the right to require the return of the original object;where any act impairs the possession,the possessor has the right to request the termination of impairment or danger;and where any damage is caused by virtue of encroachment or interference,the possessor has the right to require compensations.The claim of a possessor for returning the original object shall perish,if the possessor fails to exercise it within one year as of the date of encroachment.”
- 1995 Tai Shang Zi(台上字)No.1179 Decision provides that if the obligor steal,the obligee can ask for the imbursement based on infringement legal relation,and also can ask for the interest based on unjust enrichment.This is the ex-existence or concurrency in theory.The appellant with right of claim can choose one of them to sue.If the purpose of right of claim is achieved,it dissolves;if not,other right of claim can be exercised.See WANG ZEJIAN,supra note 28,VOLUME TWO,275.
- Article 132 of Opinions of the Supreme People’s Court on Several Issues concerning the Implementation of the General Principles of the Civil Law of the People’s Republic of China(For Trial Implementation)stipulates that The keeper or serviceman as prescribed in article 93 of the General Principles of the Civil Law may require the beneficiary to repay necessary fees,including the fees outlaid directly in the management or service activities and the actual loss suffered in such activities.
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- Article 116 of the Contract Law of the People’s Republic of China stipulates“where the parties to a contract agree on both breach of contract damages and a deposit,when one party violates the contract,the other party may choose to apply the breach of contract damages clause or the deposit clause.”This is an arbitrary norm.Deposit contract is a real contract.If the two parties only agree on deposit,but do not deliver,it cannot form a selective obligation with damages.
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- Article 156 of Property Law of the People’s Republic of China regulates,an easement holder shall be entitled to make use of the real property of someone else according to the contract so as to increase the efficiency of his own real property.The expression of“real property of someone else”as mentioned in the preceding Paragraph shall be the servient tenement,and the expression of“one’s own real property”shall be the dominant tenement.
- The registration of easement only adds the absoluteness of the usufructuary rights to obligations,not changes the relativity,like the advance registration which was regulation of article 20 of the Property Law of the People’s Republic of China.
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- Article 227 of the Civil Law of Taiwan District stipulates specially about the victim’s infringement of the personality caused by injuring prestation.
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- Zhang Xiaohong,New Thinking about the Recognition Standard of Litigation Object When Concurrence of Rights of Claim happens,6 Journal of Zhejiang University(Humanities and social sciences),(2004).
