From Contractual Collateral Obligation To The Duty To Cooperate

The theory of contractual collateral obligation originated from Germany,which has lasted for more than one hundred years,has become obsolete and lacks explanatory power for the mordern commercial practice.In the backdrop of the civil code compiling,it is very necessary to review the theory of contractual collateral obligations,based on the architecture of the current China's civil code draft,combined with the new trend in the new era background and international contract law.The aid is to make a theoretical transformation from contractual collateral obligations to the duty to cooperate,and in the law of contract in the future to make more reasonable and more clear about the contractual cooperative obligations.In addition to the introduction,conclusion and appendix,this paper is divided into six chapters.The first chapter first elaborates on the current theories of collateral obligation about its connotation,type,status and legal remedy,then analyzes a large number of judgments on collateral obligation in practice,and finally draws the conclusion that there is a big conflict between theory and practice.Chapter two focuses on the limitations of the collateral obligation theory.Firstly,this paper analyzes the historical limitations of the collateral obligation,and holds that with the legalization of Germany's collateral obligation theory,the collateral obligation theory originated in Germany has become an "outdated" theory.Secondly,the paper analyzes the theoretical limitations of the collateral obligation theory,and argues that the contractual protection obligation theory cannot adapt to the legal system of the separation of contract law and tort liability law in China.Moreover,it is very difficult to distinguish between the obligation of payment and the collateral obligation based on the principle of good faith.Finally,the paper analyzes the practical limitations of the theory of collateral obligation,and concludes that the theory of collateral obligation does not conform to the content of contract,let alone the new direction of the development of contemporary contract law,and it is difficult to explain the ever-changing new economic phenomenon and business model.Chapter three firstly examines the cooperative obligation in international and regional(mainly European)contract legislation,and briefly analyzes the cooperative obligations in French and American laws.On this basis,this paper puts forward the concept of cooperative obligation and expounds its legal characteristics,then analyzes the difference and transformation path between collateral obligation and cooperative obligation.Finally,the paper emphasizes the necessity of transforming from collateral obligation to cooperative obligation.Generally speaking,after excluding the obligation of protection,the essence of the contractual collateral obligation is to promote cooperation.The cooperative obligation has been established by many foreign contract laws.China's future contract codification in civil code should abandon the concept of the collateral obligation and clearly stipulate the cooperative obligation.Chapter four first focuses on the specific types of cooperative obligation,which are divided into seven types: the obligation of good faith consultation,the obligation of information disclosure,the obligation of cooperation,the obligation of re-negotiation,the obligation of not maliciously using the terms and conditions of the contract,and the obligation of not rejecting the debtor's right to reasonable remedy.Finally discusses the the legal status of the cooperative obligation,think that the structure of contractual obligation should be changed from the hierarchical system to the dual structure of cooperative obligation and agreed obligation.Cooperative obligation and agreed obligation are on an equal footing.The adjudicator should take the contract goal as the center to carry on the fair examination to both,in order to determine the contract responsibility finally.The fifth chapter discusses the theoretical basis of cooperative obligation,and holds that the core foundation of agreed obligation is the principle of contractual freedom,while the core foundation of cooperative obligation is the principle of contractual fairness and trust protection,and the two obligations are jointly governed by the principle of good faith.The duty to cooperate is not only the concrete embodiment of modern private law from individualism to cooperation,but also the concrete manifestation of relational contract theory in contract law.The sixth chapter elaborates the legal remedy of cooperative obligation from theory to practice.Firstly,this paper analyzes the deficiency of the legal remedy about collateral obligation in the present contract law,points out that the future contract editor should clearly stipulate the cooperative obligation in the general provisions of the contract law,and puts forward specific legislative Suggestions.Finally,it discusses the legal remedy of the obligation of information disclosure,cooperation,re-negotiation and so on.