Study On The Legal Effect Of Breaching Collateral Duty

Collateral duty originated from German civil precedent theory, its purpose lies in guaranteeing to realize the aim of contract and guaranteeing contract's parties the legitimate rights and interests, having the function of balancing personal rights, interests with social rights, interests and pursuing essence justice. Collateral duty is experienced the course that it has guide on precedent and academic, judge made the collateral duty system, then put it into statute in German, Japan and our country. Although collateral duty made statute experienced a special course, at last, it has a place in civil law in continental legal system countries .Now, collateral duty is regulated in our "contract law", but civil law circle can't reach common understanding about some basic theoretic questions, they still stay in the ways of content defining and state studying and they are devoid of common understanding about legal effect. From the perspective of try practice, this will lead to the confusing about standing and legal using, and influence the unifying of law using and judicial dignity. The collateral duty system of German has a history of over one hundred years and establishes the perfect one. There are many classical cases. The newly revised German civil law gives essential and much revision to the old tort law system. One of distinct changes is that German legislators absorb theories and the explanation of precedent clearing the collateral duty between parties and regulating the responsibility of breaching the collateral duty. This article will try introducing and analyzing the existing achieving of German, binding the relevant cases of German, American, and our country, referring to many scholar's theoretical views, discussing the legal effect of breaching collateral duty in using it. Hope that this will give some humble advices. This article is composed with two chapters. The first chapter summarizes the obligation. The first will be written in three steps, First of all, collateral duty is the duty that is produced in developing the contract because of honesty and trust in order to protect performing duties of paying and the parties'personal and property interests; Secondly, I summarize the feature of collateral duty, uncertainty, legislating of collateral duty. Thirdly, according to different precedent and judicial practice, the state of collateral duty is summarize two categories: assisting obligation and protecting obligation. Assisting duty has the function of helping to realize debtor's paying interests; While protecting duty is absent of direct relation, having the function of looking after and avoiding infringing others personal and property interests. It is still necessary that collateral duty exists; At last, the article describes whether collateral duty can be asked separately. The interests protected by different kinds of collateral duty are different. If using a common principal to settle this question is difficult, it should analyze according to concrete cases. Two conditions of asking the right is summarized. The second chapter is the study on the legal effect of breaching collateral duty. The article regards the contract developing as a motive process and divides the contract developing into several stages: in the process of concluding contract, after establishing contract and before coming in force, in the process of performing the contract, after finishing contract. It will discuss the state and effect of breaching the obligation during the whole article. In the first step—in the process of concluding the contract, the obligationis also called before-contract collateral duty. The article describes how to define it, the main style, the effect and the ways of performing the duties. The parties may insist on collateral duty either when the contract doesn't coming to force, it is devoid and it is canceled or after the contract coming into force . The article also describes the ways of performing the duties, and it is consisted of returning the property, compensating the damage and removing the contract. In the second step-after establishing contract and before coming in force. The obligation in this step is called "before-effect collateral duty". I think that before-effect collateral duty exists certainly. This part describes the main style, effect and the way of bearing responsibility about the before-effect collateral duty. There is a process from contract establishing to contract coming in force. Although contract is established and in force, it doesn't process the force of fulfilling actually before coming in force, and two parties have no right to ask the other party to perform the duties in contract. From the aspect of legal constrained strength, the engagement of establishing contract leads to the obligation of honesty, assistance, protecting, etc, before-effect collateral duty. If one party breaches before-effect collateral duty in force the other party can insist on compensation and continuing to perform. In the third step —during the course of performing the contract , the duty is called middle-contract collateral duty in the course of contract . Breaching middle-contract collateral duty contract can compose of paying incompletely, and it is subdivided into paying with flaw and paying for injure. Referring to German new debt law , I think that party can insist on compensation for injure , party should admit that creditor has right of removing contract when breaching the obligation leads to obstacle of realizing the aim of contract so that party...