契約責任與侵權責任的競合之理論上檢討

契約責任與侵權責任的競合是民法上爭論長達上百年的著名理論問題。爭論的核心是：應依契約責任的規定，還是應依侵權責任的規定來調整競合？亦即，如何確定競合情形的法律效果或損害賠償請求權？本文的核心目的正是要探討和回答這個問題。而本文所作的努力只是：採取批判繼承的態度，嘗試著在吸收前人的學說（主要是請求權規範競合說）中的合理成分的基礎上，從新的角度進行觀察以及作進一步的挖掘。在此過程中，我國《合同法》第122條關於競合的立法取向一併獲得檢討。

The concurrence of conctratual liability and tortious liability is a famous problem in civil law, about which there was a discussion lasting over a hundred years. The core of the argument is that, to solve the problem, should the rules of conctratual liability or the rules of tortious liability be used? That is to say, how to determine the legal effect under the circumstance of such a concurrence? This article tried to discuss and answer the question. By both pointing out the shortages of the existed theories and absorbing some of their reasonable parts (mainly that of Anspruchsnormenkonkurrenz), and by trying to analyse from some new perspectives, what was given in this article was an endeavor to further the discussion about the problem. As a byproduct, a critical remark was given to Article 122 of China Contract Law, which regulates the concurrence of conctratual liability and tortious liability.