違約與侵權競合實益之反思

Reflection on the Practical Benefit of Concurrence between Liability for Breaching Contract and Tort

違約與侵權竟合主要有兩類：加害給付型和違反保護義務型。在后者以及在前者的違反手段義務場合，違約責任為一般過錯責任，與一般侵權責任相同；違反結果義務時，因產品責任等特殊侵權情形，違約與侵權多數為嚴格責任，二者的歸責與證明責任亦同。從損害賠償范圍看，二者均通過客觀概率論配合法價值判斷來限定因果關係，都允許精神損害賠償。

There are mainly two types of concurrence between liability for breach of contract and tort: injuring performance and breach of the obligation to protect the other party. In the latter, and in occasion of breach of the obligation of means, liability for breach of contract is one of general fault liabilities, which is the same for general tort liability. In case of breaching an obligation of result, due to the existence of product liability and other special tort, breach of contract and tort of strict liability are the same most of the time, as well as the burden of proof of liability. From the perspective of damages, they establish causal relationship with the law on value judgments by objective probability, and are allowed to mental damages. On the statute of limitations, in terms of systematic interpretation or literal interpretation, no general differences exist between breach of contract and tort. In addition, they adopt the same responsibilities to ease the rules. Overall, breach of contract and tort liability have only very small differences when they are concurrent, therefore, the practical benefit between them is rather limited.