试论瑕疵担保责任在中国《合同法》上的定位

Abstract

According to the civil law of continental law countries.，the guarantee liability about blemish is an independent civil liability which，prescribed by the Article of sale contract，is also applied to other onerous contract except employment contract. It is acknowledged that the guarantee liability about blemish has its own characteristic，with reference to contemporary theory of civil law’s mainstream in continental law countries. However，such‘liability’is a kind of default rather than the independent one beyond any scopes. In Chinese <contract law>, there are arguments about weather the guarantee liability about blemish is an independent civil liability，from which the following three kinds of viewpoints are concluded：the independent liability、not independent liability or the compromise. Fundamentally，the author support that the guarantee liability about blemish is not independent liability. Pursuant to Chinese <contract law>, the guarantee liability about blemish is not an totally independent civil liability.Furthermore,it is a relatively independent liability which belongs to the liability for the breach of contract only. Its criterion of liability is liability without fault rather than strict liability, which is the basic criterion of liability for breach of contract.of <contract law>.