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从我国固有的法律制度出发,加害给付应界定为:债务人的履行不符合合同约定的质量标准,并侵害债权人履行利益以外的人身、财产利益的行为。其构成要件:债务人依有效合同作出了履行;债务人的履行有瑕疵;瑕疵履行造成债权人固有利益的损害;瑕疵履行无免责事由。为了充分救济加害给付对债权人造成的损害,建议在我国《合同法》第122条增加一款作为第2款,其内容为:当事人一方的履行不符合约定的质量标准,侵害对方人身、财产权益的,受损害方可以依照本法要求其承担违约责任。其他未补偿的损害,受损害方还有权依照其他法律要求其承担侵权责任。
Starting from the inherent legal system of our country, the injurion payment should be defined as that the performance of the debtor does not conform to the quality standards stipulated in the contract and infringes on the obligee’s interest in performing personal and property interests other than the interests. Its constitutional elements: the debtor has performed according to the effective contract; the performance of the debtor is flawed; the execution of the flaw causes the damage to the inherent interests of the creditors; and there is no cause of exemption for the performance of the flaw. In order to fully relieve the harm caused to the creditors by the injurious payment, it is suggested to add a paragraph as the second paragraph in Article 122 of the Contract Law, which states that the performance of one of the parties does not conform to the agreed quality standards and infringes on the personal and property rights of the other party The injured party may, in accordance with this Law, demand that it bear the liability for breach of contract. Other damages that are not compensated shall also be entitled to bear the tort liability according to other laws.