Responsibility Identification For Violation Of Contractual Collateral Obligation

Collateral obligation is an important system of the contract law in the civil law system, which is the embodiment of the principle of good faith. Originated in the doctrine of judicial precedents and various theories, collateral obligation gradually accepted by national legislation and judicial practice. China's "Contract Law" also made of the provisions of the collateral obligation in the second paragraph of article 60:the parties shall abide by the principle of good faith, and perform obligations of notification, assistance, and confidentiality, etc. in accordance with the nature and purpose of the contract and the transaction practice. With the rapid development of economy and society, contract law by pursuing formal justice to pursue substantial justice, the collateral obligation in which played an important role. However, due to uncertainties and other characteristics of collateral obligation, theoretical circles does not form a deep unified consensus,and wide divergence is founded on the use of this system especially on responsibility identification for violation of contractual collateral obligation in the judicial practice. Based on the origin and development of the discourse of collateral obligation and integrated system of national legislation and judicial practice, this article defines the concept, characteristics and contents of collateral obligation, focus on how to determine the responsibility for violation of collateral obligation. This article contains four parts. The first part is the origin and development of collateral obligation. Describing the history of the emergence and development of collateral obligation and the relevant provisions of national legislation. Selected Rome, France and Germany, the three representative countries discussed. The second part is the definition of the concept of the collateral obligation by comparative analysis of regional legislation and practice and this article puts forward the concept of the collateral obligation:the contract obligations are based on the principle of good faith,the parties outside except payment obligations burden to complete the payment of interest and attend to others the obligation generated from legitimate rights and interests, And compares with similar concepts, this paper argues that the collateral obligation is accompanying the obligations to fulfill the obligations of the contract should not be included after the first contractual obligations and contractual obligations, and payment of its obligations with distinction, while the collateral obligation stipulated by the parties concerned or legal provisions in for necessary. The third part is the characteristics and contents of the collateral obligation which has the accompaniment, uncertainties and extensiveness. The main contents include notice obligations, obligation to assist, confidentiality obligations and protection obligations. The fourth part is the responsibility identification for violation of collateral obligation. First of all defines the nature of the responsibility for violation of contractual collateral obligation is breach of contract and emphasis on analysis of the elements of liability of breach of contract:damage occurred, the acts which violated the collateral obligation, breach of contract of collateral obligation behavior and damage results have causality. In the four elements, damage divided into property damage and the property damage, the property loss also should get damages for the breach of contract; violation of collateral obligation constitutes incomplete pay, can be as, can also is not as; judge breach of contract of collateral obligation behavior and damage by the causal relationship between the causality; breach of contract of collateral obligation fault liability principle, should adopt the presumption parties have a fault.