The Research Of Contractual Collateral Obligation

The title of this article is "The Research of Contractual Collateral Obligation". This article contains nine chapters. Chapter 1 is "introduction". From chapter 2 to chapter 8 is the main part .Chapter 9 is "conclusion".Chapter 1 IntroductionBecause this essay discusses something about obligation, from superficial view, it seems uncompatible with civil law's attribute of rights of law, firstly, introduction points out: in civil law which takes rights as its standard, law of obligation consists of rules of obligation, that is to say , obligation is the law of obligation's main point, the core of law of obligation is the obligations in the relationship of debt; constructing the contractual obligation is an important issue about law of obligation. Following, this article introduces three typical cases which initiate author's feeling and impulse and bring about research. In order to show the value of this research, the article illustrates from two aspects—theory and practice: (1) on the researching level of collateral obligation in educational circles, in circumstances of ignoring the study of it in the country or areas with civil law system, German's theorists still have much disagreement on it, its theory on collateral obligation is "still not mature"; Taiwan area has some achievements, but there is still more developing space. Our country's mainland has not had substantial progress. (2) On the mastering of collateral obligation in the practical circles, the actions accepted by the courts in mainland are much less than Taiwan area, in addition the practical circles' knowledge of collateral obligation needs to be improved. Therefore, the research of collateral obligation is valuable for theory and practice. In addition, this article's study is much wider in region and deeper in degree in order to make a pioneering topic. Introduction has explained the methods of researching: the range in which the article researches is the collateral obligation when performing a contract, that is narrowest collateral obligation. The methods the article has used are comparative analysis, historical analysis, positive analysis, law-interpretation analysis, systematic analysis, logic analysis, economic analysis and so forth.Chapter 2 On conception: the definition of contractual collateral obligation.In Germany, there are three words standing for collateral obligation: "Nebenpflicht", "Schutzflicht" and "weitere Verhaltenspflicht", they descript collateral obligation except for performance obligation from different aspects: "Nebenpflicht" focuses on the obligation's position, underlines "the collateral attribute" compared with performance obligation; "Schutzflicht" stresses the obligation's function, shows that this obligation is in purpose of protecting the inherent benefits of counterpart, but "weitere Verhaltenspflicht" points out directly the special character of state of this obligation embodying "uncertainty" and "continuity" of this obligation incisively and vividly. After the comparison, this article considers that "collateral obligation" is suitable in Chinese. Because it can not only embody the obligation's basic character but also avoid misunderstanding brought up by other terms such as "subsidiary...