Abstract: The Civil Code provides contributory negligence in contract law by referring to Civl Law while providing strict liability in contract and mitigation by referring to Common Law.It is necessary to interpret the rules systematically.However, most research simply copies the pionts of contributory negligence in tort law.Some cases have resulted in “ambiguity” based on judges' naive understanding of the principle of fair distribution of losses.The interpretation of contributory negligence should be based on the distinction between tort and breach of contract.Torts occur between unspecified parties and the liability is determined by law, in contrast, the liability for breach of contract occurs between specific parties and the rights, obligations, and distribution of damages under the contract can be agreed upon by the parties.Therefore, a unified standard of conduct for creditors should not be set, but rather the contributory negligence of creditors should be defined and determined based on the contract.The contributory negligence of creditors refers to their failure to perform actions that can reasonably be expected to be implemented based on the contract, mainly including breach of promise, non cooperation, and failure to take reasonable care of their own interests.The people's court or arbitration institution shall consider factors such as the nature and content of the contract, the type of creditors and their experience, the cost and benefits of preventing damage, to determine whether the creditor is at fault.As for the creditor's attributable behavior after the debtor breaching the contract, the standard for distinguishing between the application of contributory negligence and mitigation lies in whether the loss expanded by the act of creditors which break the chain of causation can be divided from the creditor's total loss.

Key words: Breach of Contract, Contributory Negligence, Differentiation Theory, Agreement on Risk Allocation, Loss is Quantitatively Divisible

摘要： 《民法典》在参考英美法系以严格责任为违约责任一般归责原则且设有减损规则的基础上,又参考大陆法系设置了债权人与有过失规则,有待体系性解释规则的适用。然而,既有理论大多照搬被侵权人与有过失规则的研究成果,部分裁判者基于对公平分担损失的朴素法感情认知而作出“和稀泥”的判决。对与有过失规则的解释,应采侵权责任与违约责任区分说。不同于侵权责任发生在不特定当事人之间及其法定性,违约责任发生在特定相对人之间且合同项下权利义务、损害分配具有意定性特征,因此,不应当脱离合同而对债权人的行为标准作统一要求,而应当以合同为基础界定及认定债权人的过错。债权人的过错指其未履行基于合同可以合理期待其实施的行为,主要包括违反承诺、不合作和疏于照顾自身利益。人民法院或仲裁机构应当考虑合同的性质及内容、合同主体类型及其交易经验、预防损害的成本与收益等因素,认定债权人是否存在过错。针对债权人在债务人违约之后的可归责行为,区分适用与有过失与减损规则的标准在于可否从债权人的全部损失中分割出由其中断因果关系所扩大的损失。

关键词: 违约责任, 与有过失, 区分说, 风险分配的意定性, 损失可分割说