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The overall interests of protection and Articles 8 12 and 426 of the Civil Code constitute the basis for the buyer to claim damages; Regarding the third claim for damages, that is, when the motor vehicle elevator cannot be used for a long time due to structural or production defects, does it infringe on the business right of the motor vehicle repair shop that has been established and operated? In the view of the Federal Supreme Court, although the established and operating business right has been included in the category of Article 823 1 of the Civil Code, product defects can also infringe on this right in principle, which is equal to "other rights" such as life, body, health, freedom and ownership. However, the application of this rule must conform to the fact that the overall interests have been violated. If it is only an infringement of a part of the enterprise, such as a person, a vehicle, a part of a machine belonging to the enterprise, or a specific device in dispute in this case, although it is really important to the enterprise, it does not constitute an infringement of the established and operating business rights in the sense of this paragraph.

In this regard, it is clearly pointed out in German academic theory that the second damage occasion is not the damage to the buyer's other personal and property legal interests, and does not belong to the category of damage caused by defects, but the damage suffered by the subject matter of the sale itself due to defects, which still belongs to the category of defect damage. However, based on the special judicial policy and the balance of interests, the court avoided the short-term limitation on the liability of warranty for defects in contract goods, and the producer was not the direct party to the contract, which was not conducive to the full relief of the victims, so it was identified as the category of infringement of the ownership of Article 823 1 of the Civil Law, and the victims were fully relieved. It is only a special case and an extension of product tort liability protection. Therefore, when there are other normative mechanisms to consider and provide solutions for the interests of victims, based on the security of the law and the corresponding balance of interests rules, the ownership infringement rules in Article 823 1 of the Civil Code are no longer applicable here.

(4) Summary

The functional qualification standards and substantive equality standards formulated by the German Federal Supreme Court in order to distinguish between equivalent interests and overall interests in secondary injury cases, and the cautious attitude of re-weighing these standards when applying them in specific cases show that even if the provisions of the code are not enough, before fundamental changes take place at the legislative level, based on the stability of the law and the authoritative consideration of the law itself, it still needs to be within the framework of existing laws. Exploring solutions to meet the needs of rapidly developing social life through legal interpretation is really helpful to incorporate relevant facts into the law before the outdated provisions of the law are changed through legislative procedures, and can provide a solid institutional guarantee for the complete legal realization of specific people promised by modern countries ruled by law.

Of course, it is unrealistic to accurately distinguish the equivalent benefit of the applicable object defect liability system from the overall benefit of the tort liability system relief through the functional limitation standard and substantive equality standard in the secondary damage type. The dilemma caused by this inaccuracy has also led to many challenges from German academic theory to corresponding judicial practice.

(A) theoretical disputes

1. Whether the secondary damage developed in German judicial practice belongs to the infringement of ownership stipulated in Article 823 1 of the Civil Code is controversial in Germany: 1. Definitely. Scholars who hold this position believe that the Federal Supreme Court has expanded the types of ownership infringement in Article 823 1 of the Civil Code by means of legal interpretation, realized the continuation of the law, and exhibited the corresponding specific applicable standards, which really solved the problem of poor relief for victims caused by insufficient rule-making ability, and also has the basis of legitimacy and legality in civil law theory. In their view, the certainty and predictability of legal rules do not mean that they are stubborn and rigid, regardless of real life and people's legitimate needs. Instead, we should adhere to the certainty of the rules, concretize the abstract purpose and value pursued by the law through legal interpretation, and respond to and meet the realistic needs of specific people due to changes in the background of the times when conditions are available.

2. Negative theory. Scholars who completely refuse to apply tort law to remedy this kind of damage believe that when the contract object itself is involved, they should completely refuse to bear tort liability. In its view, in this case, the defects of the object are only the equivalent interests protected by the liability system, while the overall interests protected by the tort liability system are not included in Article 477 of the original Civil Code. Judicial practice should not continue to violate the meaning of the statute to create laws.

3. eclecticism. Scholars who hold this position believe that secondary damage that is of great significance to infringement should be distinguished from equivalent infringement that is only dealt with according to the property defect liability system, and it is suggested to deal with it separately. In particular, it is generally believed that producers only bear tort liability when they violate their general communication security obligations, and the premise of this communication security obligation is that the product not only threatens its own integrity, but also threatens the life, body and ownership of a third person, or is more or less seriously damaged or destroyed because of the safety defects of the product.

4. Revise the theory of certainty. Scholars who hold this view believe that the responsibility for secondary damage caused by violating the obligation of explanation is based on the fact that the tort is not a part of the defective thing that enters the circulation field, but a negligence in explaining the defect of the thing and its associated self-extinction risk. Therefore, this view essentially supports the Federal Supreme Court to include secondary damage in the category of infringement of absolute rights. Generally speaking, the type of secondary damage in the category of ownership infringement contained in Article 823 1 of the Civil Code in German judicial practice was essentially developed by the Federal Supreme Court in order to overcome the problem of short limitation of claims for defects in goods and transactions in Article 477 of the Civil Code. Although the continuation of this judicial practice is still controversial in theory, it actually helps to alleviate the practical embarrassment of inadequate relief for victims caused by insufficient legislation.

(2) Actual response

On the one hand, at the level of legislative practice, since Germany's "Modernization Law of Debt Law" came into effect in 2002, the realistic basis for the Federal Supreme Court to create the infringement type of secondary damage to ownership no longer exists. Because Article 438, Item 3, Paragraph 1 and Article 634a, Paragraph 1 of the Civil Code extend the guarantee performance period of the sales contract and the conclusion contract to two years respectively, which is obviously different from the previous six months and one year stipulated in Article 477 of the Civil Code. But does this mean that this type of ownership infringement is unnecessary in judicial practice? Of course not. In fact, after the modernization of the debt law, the defects in the contract, especially the buildings that are responsible for guaranteeing the defects of things, may even play a more important role because of the connection between the rules of the sales contract and the contract rules. Therefore, in the eyes of German scholars, the rules established by the debt law reform have not changed much compared with the German Civil Code 1900 in terms of the concurrence of contract and tort rules.

On the other hand, judging from the practical attitude of the Federal Supreme Court, it has not given up its basic position so far, that is, the type of secondary damage is regarded as the type of ownership infringement in Article 823 1 of the Civil Code and included in its scope. Of course, as far as the current judicial practice in Germany is concerned, when there is liability for warranty against defects, only when the damage does not overlap with the worthless part of the subject matter, and the worthless part is attached to the subject matter from the beginning because of the defects in the subject matter, will there be room for the application of tort law, otherwise it can only be solved by applying contract law. In this regard, some people in Germany agree with this.

Verb (abbreviation of verb) The Enlightenment of German Experience to China

(A) China's basic ideas and problems in solving related disputes.

1. Scope of application of contract law and tort law

In our country, when the subject matter of sale is completely damaged or worthless after delivery due to defects from the beginning, the legal practice in the field of contract law does not seem to be much different from the corresponding theoretical theories. On the one hand, although there are different views on the normative relationship between the liability for breach of contract and the liability for warranty against defects in China, for example, the theory of statutory liability, the liability for warranty against defects and the liability for breach of contract are different in terms of legislative policy, legislative purpose, elements of liability establishment, exercise premise and scope of damages. However, in view of the liability form stipulated in Article11of the Contract Law, it is considered that the liability for warranty against defects is actually integrated into the liability system for breach of contract in China's legal practice. According to the theory of non-performance of debts, the liability for warranty of defects is essentially a liability for breach of contract, because the principle of no-fault liability is adopted in the Contract Law. The liability for warranty against defects is essentially a special liability for breach of contract, because it is different from the liability for breach of contract. However, both the view that the liability theory gives priority to the liability for warranty of defects and the view that the liability for warranty of defects and the liability for breach of contract are chosen are essentially based on the liability form established in Article11of the Contract Law. According to Article11of the Contract Law, the victim has the right to claim the right to repair, replace, redo, return goods, reduce the price or remuneration from the responsible person; In addition, in the sales contract or processing contract, the obligee can also claim the liability for damages stipulated in Articles 1 12 and 1 13 of the Contract Law from the responsible person.

On the other hand, since the liability for breach of contract, warranty for defects and tort liability are all limited by the general limitation of action before the implementation of the General Principles of Civil Law stipulated in Article 135 of the General Principles of Civil Law, if there is no special provision in the law, if the subject matter is completely damaged due to its defects from the beginning after delivery, the victim claims relief in contract law based on warranty for defects or liability for breach of contract. There is no substantive difference in prescription between the remedies in tort law and those based on tort liability, and there will be no possible evaluation contradiction between the level of payment and the level of protection in the German Civil Code before the modernization of debt law.

In this regard, the liability relief scheme established in Article11to 1 13 of China's Contract Law and its related limitation period roughly cover the main problems that German law has to solve by creating the type of secondary damage. In German judicial practice, the basic idea of bringing secondary damage into the category of ownership infringement in Article 823 1 of the Civil Code through legal interpretation can be completely solved through the Contract Law in China. In principle, there is no need to go back to the general principles of tort law and find the basis for solving related problems.

2. Contradictions and problems in the tort law system

The above principle does not completely rule out that under special circumstances, the victim who has defects in the subject matter from the beginning and the subject matter itself has been lost after delivery has the right to claim relief in tort law. Especially considering the normative relationship between Article 4 1 of Tort Liability Law and Article 4 1 of Product Quality Law, we still need to be cautious about the experience gained in German judicial practice in dealing with secondary damages.

Article 4 1 of Tort Liability Law stipulates: "If the product has defects and causes damage to others, the producer shall bear the tort liability." This is obviously different from Article 4 1 of the Product Quality Law, because the latter clearly stipulates: "If a product defect causes personal injury or property loss other than the defective product, the producer shall be liable for compensation." Obviously, the Product Quality Law only points to the protection of the overall interests of the victims, but does not include the equivalent interests when the subject matter itself is damaged or lost due to defects after delivery, and the meaning of Article 4 1 of the Tort Liability Law is not clear, whether it is not limited to the overall interests of the victims protected by tort law after delivery of the defective subject matter, but covers the equivalent interests protected by contract law, there is no conclusion here [. There are great differences between relevant judicial practice and legal theory before and after the promulgation of Tort Liability Law. Before the promulgation of Tort Liability Law, some judicial practices and theoretical theories believed that after the delivery of defective products, the damage suffered by the victims should be recognized as the scope of tort law adjustment, so as to fully protect the interests of the victims; However, the opposite judicial practice and theory hold that in this situation, the damage caused by defects and the damage caused by defects should be distinguished, and the contract law and tort law should be applied respectively to adjust, so as to prevent the protection scope of tort law from being too broad and affecting its own legitimacy foundation.

After the promulgation of Tort Liability Law, the differences between theory and judicial practice have not been substantially eliminated as to whether Article 4 1 of the Law can cover the damages caused by the defects of the subject matter after delivery. As a result, there are serious differences in the application of the law in judicial practice: in the judgment, the courts that agree with the affirmative view in theory generally believe that Article 4 1 of the Tort Liability Law does not distinguish between the damage of other property other than the defective product and the damage of the defective product itself, and the victim has the right to request tort relief for the damage caused by the defect of the subject matter; However, the court that agrees with the negative view in theory holds that Article 4 1 of Tort Liability Law does not specify whether the damage caused by the defects of the subject matter after delivery includes the damage caused by the defects or only refers to the damage caused by the defects. According to Article 5 of the law, the special law is superior to the general law. In this case, Article 4 1 of the Product Quality Law should be applied, which means that the damage caused by defects should be applied to the tort law.

Therefore, although there is no embarrassing situation in China's civil law system that the secondary damage before the German law with modern debt law cannot be fully relieved due to the defects of statute law such as short limitation of action, the inherent rules of tort law system, that is, the tension between Article 4 1 of tort liability law and Article 4 1 of product quality law, lead to the defects of the subject matter. Even scholars who are in favor of applying tort law to deal with secondary damage have correctly pointed out that the application of tort liability is only based on special judicial policy and balance of interests. However, for the reason why the secondary damage belongs to the scope of liability for breach of contract or warranty for defects, it needs to be remedied through contract law or tort law. Both parties to the dispute have not provided convincing arguments, nor have they given clear standards to define the adjustment fields of contract liability and tort liability. In this sense, a series of argumentation ideas and consideration standards put forward by German judicial practice in dealing with secondary damage are still of reference significance for China to solve related problems reasonably.

(B) Enlightenment to China's judicial practice.

As far as China's judicial practice is concerned, the basic idea that the German Federal Supreme Court created the type of secondary damage and creatively brought it into the category of ownership infringement, and applied the tort liability system for relief when conditions permit can actually be interpreted from both macro and micro perspectives:

1. Micro-perspective: the division of warranty liability and tort liability for defects and the relief of victims. In China's legal practice, even if the liability for warranty of defects is placed under the liability for breach of contract, and a uniform limitation period of two years is stipulated for related creditor's rights, in fact, the problems existing in the defects of the delivered subject matter in the sales contract and the processing contract cannot be completely solved. When the limitation period of liability for warranty of defects expires, the buyer or the client is completely exempted from losses. From the formal logic of GAI damage relief rule system, there is no clear relationship between the liability system for breach of contract and the liability system for tort. In fact, there is often a vague middle zone on the edge of the adjustment of the liability for breach of contract and tort liability system. As the German Federal Supreme Court admitted in the "Safety Valve Case", it is often difficult to determine a clear boundary between the equivalent interests protected by the liability system of collateral defects and the overall interests protected by the tort liability system, and between the defects of things and the infringement of ownership. Therefore, under the condition that the legal and technical boundaries are not clearly established, it is actually against the basic values of a modern country ruled by law to categorically reject the victim's request for legal relief. For China's judicial practice, taking the victim's full relief as the starting point, and considering that the actor's basic freedom is not affected, we can properly consider taking the actor's violation of the general communication security obligation as the standard, and introduce the tort liability system into the trial of specific cases, so as to provide an adequate protection mechanism for those victims who cannot get relief through the liability system for breach of contract due to the limitation of property defects.

2. Macro perspective: overcoming the limitations of written law and the continuation of judicial practice.

The tension between the certainty and predictability of legal rules and the openness of social life is an unavoidable problem in the legal practice of law-making countries. On the premise that the legislative resources are limited and it is not easy to change the established legal rules through changes at the legislative level, the judicial practice level needs to skillfully use legal interpretation methods to bring those facts that urgently need legal absorption into its adjustment category without changing the existing legal rules and their systems. The courage and extraordinary speculative skills shown by German judicial practice in the face of the current predicament caused by the original Article 477 of the Civil Code are essential for solving the aforementioned tension. For China's judicial practice, on the one hand, we should adhere to the established legal rules without openly tampering or abolishing them, and guarding the authority of the law should be one of the core responsibilities of judicial practice; On the other hand, if the established legal rules are really inappropriate and can't meet the actual needs, we must complete the continuation of the law through the scheme of legal interpretation in the interpretation theory, so as to meet the requirement of opening the formulated rules to real life while maintaining the stability and basic authority of the statute law. China's judicial practice should pay full attention to the experience of realizing legal continuity through legal interpretation from the perspective of comparative law, and gradually acquire and skillfully use it.

Conclusion of intransitive verbs

Once a law is enacted, it becomes a living existence. For judicial practice, it is necessary to explore possible solutions in the existing legal system at any time on the premise of respecting the existing legal rules and according to the needs of real life. In this respect, the judicial practice in Germany in solving the problem of whether tort law is applicable to the types of secondary damage, as well as the argumentation strategies and ideas adopted, are quite enlightening to the corresponding judicial practice in China and should be given due attention. For China's judicial practice, when the socialist legal system with Chinese characteristics has been formed, we should pay close attention to German judicial practice here.