On Subordinated Duty

After the promulgation of 'law of P.R.C on Contracts', a theoreticalconcept on duty, i.e. Subordinated duty, which was originally created by theGermany Judgment, then gradually accepted by world, and nowadays muchregarded by us, has been applied more and more in legal practices in China. Subordinated duty, a certain requirement, of the good faith principle,fulfills legal justice and fairness. It is a supplement to the delivery duty, amethod of legal construction, and a legal method to adjust interests of partieswho have relationships of delivery, will promote social transaction, willmating good economic orders, will realize the purposes of delivery ofobligation in order that the creditor will accept its delivery interests perfectly,and will irreplaceably protect interests of life, property and other materialinterests of oblige and the third party related. Subordinated duty, with features of auxiliary and uncertainty, whichcannot be claimed unilaterally for performance, embodies the principle ofgood faith. Laws will supply remedies when obligator of delivery does notperform the subordinated duty and accordingly brings damages to propertiesand injuries to life of oblige or third party related with the performanceinterests. Subordinated duty, which does not have an independent form ofliability, composes different forms of civil liability according to the differentinterests in legal sense protected by subordinated duty. This essay can be divided into three parts. From the definition, formationand development of subordinated duty, if studies and analyzes the features,functions, theoretical value, classification and the civil liability due to theviolation of the subordinated duty.Applying dominant academicviewpoints,the essay concentrated on the definition of the subordinated duty,comparison among principal and accessory duty related to subordinated duty,legal duty, actual duty, implied duty and reliable liability in Anglo-AmericanLaws, analysis of the classification of subordinated duty according to differentstandard and exploration of the compensation for damage, liability form,obligation concurrence, compensation content and other issues of civil liabilitydue to vitiation of subordinated duty. In my opinion, Subordinated duty is the duty, which the parties shouldundertake, according to the good faith principle, to protect the interest of thecounterpart and stabilize the order of trade, in addition to the delivery duty(including the principal and accessory duty). Subordinated duty is a kind ofconduct obligation; it is an obligation created from the principle of good faith;it is a kind of indirect legal obligation, which shall not be exempted byagreement; it embodies the subordination of the obligation with auxiliary; it isa kind of obligation which is uncertain from its start; it is not independent thatcannot be claimed for performance. Subordinated duty, with the function ofauxiliary and protection, is a certain supplement to deed, the inside demandof obligation, the certain demand of the pursuit of the value aim of fairnessand efficiency, and the result of the social development. Different kinds ofsubordinated duty correspondingly protect the interests of reliance,performance and maintenance. Subordinated duty, which does not have anindependent form of liability, composes different forms of civil liabilityaccording to the different interests in legal sense protected by Subordinatedduty. Generally speaking, the subordinated duty and the concrete formthereof shall not be mechanically determined and judged, but shall be judgedon the basis of individual cases, the social fairness and justice, and theprinciple of good faith, and the remedies shall be provided according to thecorresponding civil liability due to violation of subordinated duty. We shallapply the theory of subordinated duty, which is an effective means that caninstruct our practice.