First, the concept of concurrence of liability for breach of contract and tort liability
Because modern law is abstract and regulates social relations from various angles, it often happens that the same fact conforms to several legal norms, so that these norms are applicable to the fact, which is called normative concurrence in theory. Due to the concurrence of norms, the same behavior of the parties may bear several different legal responsibilities according to different norms, that is, liability concurrence.
The concurrence of liability arises from two situations: one is in different legal fields. Medical damage has caused harm to patients, and the parties concerned can bear civil liability, administrative liability and criminal liability respectively according to administrative law norms, civil law norms and criminal law norms. Second, in the same legal field. In the field of civil liability, medical damage has caused damage to patients, and the damage caused by medical parties to patients can be investigated for breach of contract or tort liability according to contract law and tort law. The concurrence of civil liability is typically manifested in the concurrence of liability for breach of contract and liability for tort.
Liability for breach of contract refers to the responsibility that a party to a contract should bear if it fails to perform its contractual obligations or fails to meet the agreement. Tort liability is the civil liability that the actor should bear according to law when he infringes on the legitimate civil rights of others. The concurrence of liability for breach of contract and liability for tort refers to an act carried out by the actor, which has the dual characteristics of breach of contract and tort, thus leading to the simultaneous occurrence of liability for breach of contract and liability for tort in law. Moreover, because of the different nature and functions of these two kinds of responsibilities, they can't absorb each other and coexist at the same time, so the actor will only bear civil liability for an act he has carried out, or bear the liability for breach of contract or tort.
In the case of medical contract between doctors and patients, medical damage not only constitutes non-performance of debts due to improper performance, but also constitutes infringement due to infringement of patients' right to life, body and health. Therefore, in civil law, when a claim for damages is filed on the grounds of medical damage, it can be based on both tort and non-performance of debts, that is, there is concurrence of liability for breach of contract and liability for tort in medical damage compensation.
Second, the types of liability concurrence theory
(1) Theory of concurrence of laws and regulations. This view holds that the concurrence of the claim for breach of contract and the claim for tort liability is actually the concurrence of two laws, not the concurrence of behavior, thus denying the concurrence of the claim. Although the liability for breach of contract and tort are two kinds of responsibilities, they are not different in essence. Tort is a general obligation to violate the inviolability of rights, and non-performance of debts is a special obligation based on contracts. Therefore, the provisions of the law on tort liability and breach of contract constitute the relationship between common law and special law. When the same act has both tort liability and breach of contract liability, that is, when the two legal provisions overlap, the principle that special law is superior to common law should be followed, and only the tort liability provisions should be applied, but not the tort liability provisions. Therefore, the parties have only one claim, that is, the claim for liability for breach of contract, and there is no concurrence of claims. This theory is a provision that recognizes the liability for breach of contract and excludes the liability for tort. Because the theory can't completely solve the litigant's claim, most scholars don't agree with it, so it needs to be standardized in the judicial field to solve this problem.
(2) The theory of competing claims. This view holds that the liability for breach of contract and tort are two independent liability systems in civil law. The fact of an act conforms to both the constitutive requirements of the liability for breach of contract and the constitutive requirements of the liability for tort, and two independent claims occur at the same time. The parties may merge or choose one of them to exercise, or they may simultaneously sue or choose one of them. The judgment of the former lawsuit has no influence on the latter lawsuit, but the law does not support two lawsuits for the same payment behavior. Therefore, it is not allowed to advocate double payment, that is, if one claim is satisfied, the other claim will be eliminated. Based on the emphasis on creditor protection, this theory holds that when an act meets the constitutive requirements of two responsibility, two independent creditor's rights should be established, which is very beneficial to creditors, but ignores the interests of debtors. According to the theory of free concurrence, because two creditor's rights can coexist independently and be transferred, the transfer can be transferred to the same subject, different subjects, or only one creditor's right, so different subjects with creditor's rights can sue in different courts, resulting in multiple lawsuits. In particular, it is extremely unfair for the debtor to face multiple lawsuits and judgments, making it bear dual responsibilities. This theory violates the legal purpose to some extent.
(3) Normative competition theory. This theory was advocated by German scholar Lorenz, who believed that infringement and breach of contract violated the same obligation. Therefore, when the same fact meets both the requirements of breach of contract and infringement, there is only one claim, not two independent claims. Although there are two bases of claim, the parties can only exercise one claim, that is, performance, prosecution or assignment.
Third, the principles to be followed in the choice of responsibility concurrence.
Article 122 of the Contract Law: "If a party violates the personal and property rights of the other party, the injured party has the right to choose to require it to bear the liability for breach of contract according to this Law or to require it to bear the liability for infringement according to other laws." This provision implies that China recognizes the concurrence of liability for breach of contract and tort liability, and gives the parties the right to choose the cause of action. The concurrence of liability for breach of contract and tort in medical damage compensation cases shows that the parties should make a choice on the concurrence of liability. However, because these two kinds of responsibilities are different in terms of constitutive requirements, burden of proof, scope of compensation, limitation of action, forms of responsibility and jurisdiction over third-party liability litigation, the choice of responsibility is extremely important. Different liability choices will lead to different legal consequences, which will seriously affect the protection of victims' interests and the sanctions against wrongdoers. This is a big problem related to whether the purpose of establishing the responsibility concurrence system can be realized. The author believes that in medical compensation disputes, the choice of responsibility should adhere to the following principles:
(1) Fully respect the principle of victims' free choice. The law does not expressly limit the right of the parties to choose, indicating that the law allows patients to freely choose a way that is more beneficial to themselves and unfavorable to the perpetrators according to the specific circumstances of the case. Of course, allowing patients to choose the right to claim compensation does not mean that the law completely allows the parties to choose at will, and this choice must be regulated by law.
(two) the principle of judicial confirmation. In the case of medical damage compensation, when two claims based on a certain behavior are not realized (the possibility of losing the case), most people think that the parties can still file a lawsuit based on the other claim. The author disagrees with this view. There are many shortcomings: first, it causes the same case to be tried repeatedly, artificially expanding the litigation cost and damaging the legitimate rights and interests of the litigants; Second, the court made different judgments on the facts ascertained. The result made by the court not only loses the seriousness of the law, but also damages the reputation of the court, and it is easy for people to be suspected of repeatedly handling cases illegally, which easily leads to the psychological injustice of the other party; Third, it is not conducive to enhancing the litigation responsibility of procuratorial organs. Because this view essentially gives the parties two litigation opportunities, it makes them think that the success of the litigation is irrelevant, which is very easy to urge the parties to make hasty choices because of their weak sense of litigation responsibility, which is not conducive to the parties to correctly and carefully choose litigation requests and safeguard their legitimate rights and interests. In a sense, it also shows that this view can easily make the legal liability concurrence system actually invalid. Based on this, the author believes that the system of confirming the parties' right to choose at one time is affirmed in law, and no matter whether the parties are satisfied with any kind of claim for the infringed rights, the other kind of claim will be eliminated.
(3) The principle of relativity of options. In the dispute of medical damage compensation, there is a special case of medical compensation, and the parties choose a way that is beneficial to them. When responsibilities overlap, they can't always choose only one claim as the cause of action. It is true that the laws of all countries deny the view that the victim can realize the second claim in the theory of concurrence of claims, and think that the victim can only realize one claim. However, in my opinion, in the case of medical beauty damage compensation, if the choice of competing responsibilities causes multiple rights damage relative to a certain behavior, the parties can choose two requests to file a lawsuit. In medical cosmetic surgery, after the patient signs a contract with the medical party, it is more beneficial for the victim to investigate the medical party's liability for breach of contract according to the contract. If the parties can only choose one kind of litigation request to file a lawsuit, then the mental damage will not be compensated, and the legitimate rights and interests of the parties will not be fully protected, which obviously violates the purpose of competing and choosing. If two claims are allowed to be selected in one lawsuit at the same time, material compensation and moral compensation can be completely realized. Therefore, in this kind of disputes, if an act causes damage to the injured party's personal and property rights, patients can choose to apply different responsibilities according to the types of damaged rights when they file a lawsuit to implement rights relief.
Fourthly, how to deal with the concurrence of responsibilities in judicial practice.
On the issue of medical damage compensation, there is concurrence of liability for breach of contract and liability for tort, that is, when filing a claim for medical damage compensation, both infringement and breach of contract can be filed. In the specific cases of medical damage compensation, there are different views in China's judicial circles on whether to choose the lawsuit of infringement or the lawsuit of breach of contract: First, they advocate that it should be handled according to the lawsuit of infringement. This view holds that medical and health undertakings belong to social public welfare undertakings, and the duties and powers of medical personnel are based on laws or relevant regulations, rather than the results agreed by the parties, and medical personnel cannot be exempted from their responsibilities by agreement. Therefore, there is no contractual relationship between medical units and patients, and the damage caused by the negligence of medical personnel should be regarded as infringement and bear the liability for tort damages; Second, it advocates that it should be handled according to the lawsuit of breach of contract. According to this view, when a patient is registered in a hospital, he agrees to provide medical services, and both doctors and patients agree to reach a medical service contract relationship. If the hospital does not provide medical services corresponding to the level of medical technology, causing damage to patients, it is a breach of contract and should be liable for damages for breach of contract. Moreover, the nature of some medical services determines that the agreement of the parties is the premise and main content of medical services, such as the location and requirements of medical cosmetic surgery mainly depends on the agreement. The author agrees to deal with it as an infringement lawsuit (except for medical beauty compensation disputes)
The reason is:
(a) the doctor-patient dispute is regarded as a contract dispute, but the premise of the establishment of the contract is that both parties have equal status and reach an agreement through consultation. However, from the current medical system in China, it is still difficult for medical units to get rid of the welfare nature, and the rights and obligations between doctors and patients are not equal. If the doctor-patient dispute is blindly regarded as a contract dispute, it may lead to negative consequences such as the patient's inability to pay medical expenses and the doctor's suspension of treatment, which violates the humanitarian purpose of "saving lives and saving the wounded", or the doctor is the only one, and arbitrarily formulates exemption reasons in the contract. Therefore, the current medical damage compensation litigation should be properly handled as infringement litigation, and the principle of inversion of burden of proof based on fault presumption should be implemented in the burden of proof of the parties.
(2) The nature of civil liability for medical malpractice should be determined as tort liability. The reasons are as follows: First, Article 2 of the Regulations on the Handling of Medical Accidents defines medical accidents as "medical accidents, which refer to accidents in which medical institutions and their medical staff violate medical and health management laws, administrative regulations, departmental rules, medical care norms and operating procedures, resulting in personal injury to patients due to negligence." It can be seen that "Regulations on Handling Medical Accidents" emphasizes the importance of "negligence" in the constitutive requirements of medical accident liability, and the principle of fault liability is the most basic principle of imputation in China's tort law. Second, Article 50 of the Regulations on Handling Medical Accidents clearly recognizes "mental damage", that is, compensation for mental damage. Traditionally, China's legislation and judicial practice have not recognized that mental damages can be included in the liability for breach of contract, but they all recognize mental damages in tort liability, while medical damages are mainly personal injuries, so it is difficult to enjoy the advantage of recognizing property losses in the liability for breach of contract. To sum up, medical damage compensation should be treated as tort liability, which takes precedence over patients' interests. Of course, according to the provisions on concurrence in Article 122 of the Contract Law, the parties should be allowed to choose the liability for breach of contract.