A study of obligatory rights infringed by the third party''s own fault
Date Issued
2008
Date
2008
Author(s)
Shih, Huai-Ming
Abstract
Article 184 I paragraph 1st of the Civil Code (Taiwan) provides that any one who, by his own fault, intentional or unintentional, infringes upon other ''right'' is liable for the damage caused to the victim. The principle set by the provision leaves doubts about whether ''interests'' enter into the range of protection of this general clause of the law of delict. The core of the problem is whether an unintentional infringement upon an so-called ''interest'', especially claims arising from the law of obligations, possession, enterprise interest or pure economic interest etc., would be sufficient to establish a liability for the damage caused to the victim.owever, the academic writers have controversy on the range of protection of article 184 I paragraph 1st. For example, the majority of them considers that unintentional infringement upon ‘obligatory rights’ should be excluded from the application of the above provision. Nevertheless, the courts, especially the Supreme court, hesitate since longtime to take a clear position on this problem.his study takes a different position. It argues that the ‘obligatory rights’ has the same nature as other rights. The other provisions of the existing delictual liability and contractual liability are not the most appropriate means for the protection of the constantly increasing ‘interests’ in the modern society. The only way is to have recourse to the general clause of the law of delict and extend the its range of protection to ‘interests’, especially ‘obligatory rights’.onsequently, there is no legitimacy on the distinction between ‘rights’ and ‘interests’ neither for contractual liability nor for delictual liability. At least, we have to admit that obligatory rights, of course, should enter into the range of protection of this general clause of the law of delict. Under the application of article 184 I paragraph 1st of the Civil Code, any unintentional infringement upon either a ‘right’ or an ‘interest’ would make the author liable for the compensation of the damage caused to the victim. If, taking account of the ‘uncertainty’ and the ‘unforseeability’ of the obligatory rights, the legal policy necessitates some limitation of liability, it is by way of the legal techniques such as damage, unlawfulness, fault, causation etc. that the courts can also control the liability to its reasonable measure.
Subjects
tort
obligation
damage
unlawfulness
causation, Liability based on fault
obligatory rights
Type
thesis
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