Study On The Duty Of Protection In Contract

With the development of cases and theories, in many countries such as France, Germany, Japan and China, modern contract theories have recognized that the duty of protection is an important part in the contractual relation. Different from the principal and subordinate duties of contract, the duty of protection services to protect contractual parties and their property from being injured during contract performance. Therefore, with the introduction and development of the duty of protection, the extent of contractual relation has expanded and contractual liability has been aggravated. Nowadays, in the system of civil law in many countries, the legal basis of the duty of protection has changed from judiciary law to written Law. From the perspective of legal norms, the duty of protection is well-congratulated in Chinese contract law, in other words, the PRC's Contract Law and many other relative statutes have provided many provisions about the duty of protection. However, the duty of protection in Chinese law is the fruit of inheriting and accepting laws and theories, therefore, in order to integrate it into the whole system of Chinese civil law and theories, there are a lot of theoretical and practical problems on the duty of protection to resolve.Based on the application of the duty of protection that have been provided in our contract law, this paper intends to analyze the following problems by ways of literature survey, induction, comparative analysis and law explanatory study: the concepts and the legal nature, the history, the foundation of law and theoretical basis of the duty of protection, the effect of breach and its application. Doing research on studying the theoretical and practical problems on the duty of protection is to perfect the law and application of the duty of protection in China. What this paper will expatiate on are as follows:Chapter 1 summarizes and analyzes the main ideas and the problems about the duty of protection in Chinese civil law theories. Then this chapter also introduces the significance of the theme and the scope of the dissertation and the methods of research. Chapter 2 establishes and analyzes the definition, the characters and scope of the duty of protection, then points out that the main significance of the duty of protection is to protect the contractual parties and their property, which has extended the range of contractual relation and made liability of contract developed. In accordance with its content and form, the duty of protection can be divided into two primary types: duty of safety and duty of interpretation.Chapter 3 focuses on legal foundations and theoretical basis of the duty of protection. First, this paper analyzes the brief history of the duty of protection; then he holds that the theoretical basis of the duty lies in mutual reliance and closely association between the two parties, in which the parties specially need to be protected. Finally, in the opinion of the author, in modern contract law the legal foundations of the duty of protection include principle of good faith, concrete provisions and other general clauses of law.Chapter 4 surveys the legal nature of the duty of protection. First, this paper points out the dilemmas about defining legal nature of duty of protection; second, it summarizes the disputes between the theory of contractual nature and theory of tortious nature of the duty, and reviews respectively their advantages and disadvantages; at the end, this paper stresses that the duty of protection is an important issue of a contract,but it must be restricted within a reasonable range. In judicial practice, we must abide by the nature, purpose and the contents of a certain contract to affirm certain duty of protection.Chapter 5 focuses on legal effects when a duty of protection has been broken. If one contractual party fails to observe the duty, he has to burden the liabilities of contract mainly in the form of compensation of damages, meanwhile, the scope of which includes damages of the inherent interest and the expectation interest. Under certain circumstances, the party can dissolve the contract if the breach has caused to break foundation of reliance. Otherwise, in many cases, breaching the duty of protection would lead to liability of tort, and concurrence between the liabilities of contract and tort. Chapter 6 discusses the concrete application of the duty of protection. Based on Chinese contract law and the cases, this chapter elaborates the contents, the limitation, the standards and the types of the duties of safety and interpretation, then analyzes some typical cases about the duty of protection to confirm the opinions that this paper has put forward.