Study Of The Relative Problems In The Contract Collateral Obligation

Contract Collateral obligation stems from the development of the contract relationship, framing the basic structure of contract obligation with contract pays obligation. Modest and mechanized contract content makes it generally binding on the main real pays obligation between the parties concerned. However, contract collateral obligation for them is only a secondary obligation that doesn't derive from the existence of contract. Even with deliberation they could hardly insight all the contents and stipulate them into the contract. In such a case, contract collateral obligation, which derives from the development of the contract relationship by the principal of good faith, poses a necessary supplement to the contract. Contract supplementary duty dates from the good faith contract in ancient Rome, existing in the writings. It is in accordance with the modern contract developing fashion. However, the theorists lack systematic and deep study of the contract supplementary duty, not to mention the judicial field, completely unfamiliar with it. There fore, making a full study of the contract collateral obligation plays an important role in improving our national legislation, fulfilling the contract, protecting the lawful rights of personal property interests of contract parties, safeguarding a secure and orderly transaction conditions as well as the guide in the judicial practice.The article aims to make a preliminary study of several problems in the contract supplementary obligation as follows:1.Theoretical introduction. Firstly, led by the foundation and development clue of the good faith doctrine, we look upon the contract supplementary obligation, originating from ancient Rome to nowadays. It gives the initial definition and introduces the legislative examples that set the supplementary obligation as regulation of the law, giving a necessary exposition of the historical theory background for the following elaboration. Secondly, the article introduces the definition and characteristics of the supplementary obligation.Although its theory experiences quite a long developing process, the supplementary duty still has no unanimous definition yet. Scholars hold different views on that. This article shares personal opinions and clarifies them by analyzing several features of the supplementary duty. I think that the contract Collateral obligation means the debtor, during the course of performance, in order to accomplish the interest of creditor, shall abide by the principle of good faith, and perform obligations such as notification, assistance, and confidentiality, etc. in light of the nature and purpose of the contract and in accordance with the relevant usage. the contract Collateral obligation is based on the principle of confidentiality, and which is a indirect and mandatory obligation, and which embodies the subordinate effect of debt, and which exists in the course of contract relationship, that is to say ,from the time the contract formed to the time the contract expired. The collateral obligation is to safeguard the parties'interests and to promote the performance of contract, and it is not of independence. Meanwhile, this author considers the contracting parties as its main body including obligors and obliges except the third parties. Contract supplementary obligation has assisting and protecting functions.2.Comparative analysis of the supplementary obligation and its relative concepts. By differentiating and analyzing the relative concepts such as prior-contract duty, we can see clearly that although there are some similarities and overlaps among these obligations, the supplementary duty has a dependent theory orientation and makes practical sense of its own. It makes an explicit definition of the supplementary duty by comparing and analyzing with other duties. I think that the contract collateral obligation should be regarded as the obligations other than the paying obligation according to the principle of good faith. The major difference between the collateral obligation and not-real obligation is that: when you violate the collateral obligation, the persons who perform the obligations should bear the liability for compensation, and it belongs to the real contractual obligation. In contrast, the obligation to notify is the important form of collateral contract, but not all of the notification prescribed by contract law is collateral obligation. For example, according to the provisions of Article 80 and of Article 96 of contract law, the party should notify the other party when the party discharge the contract according to the paragraph 2 of Article 93 and Article 94.The major difference between such notifications and notification of collateral obligation is that the exercise of notification and the effect of exercising the rights have close relationships, and if the parties fail to exercise the notification, it does not cause the other party to have right to claim compensation for damages.3.Patterns of supplementary duty. In the fourth chapter Performance of Contract of the Contract Law, the articles stipulates: The parties shall fully perform their respective obligations in accordance with the contract. The parties shall abide by the principle of good faith, and perform obligations such as notification, assistance, and confidentiality, etc. in light of the nature and purpose of the contract and in accordance with the relevant usage. The duty of notification assistance, confidentiality herein is called supplementary duty by the theorists. However, scholars share different views on its patterns. This author holds the views that the supplementary obligation should include obligations of notification, assistance, confidentiality, safeguard, does not take obligation,renegotiationable obligation,and then makes analysis to clarify these duties respectively. I have listed above are the major forms of contract collateral obligation, but such obligation is not limited only by such lists. Because social economic life is progressing, and new contracts follow fast, and the subjective environments in which the contract exists may have new and complicated changes, so the collateral obligation is not a static thing, but a developmental and dynamic process.4.Finally, probe for the legal liabilities in case that someone breaks the contract collateral obligation. This paragraph interprets the natures, forms factors and several exemption cases, of civil liabilities resulting from running counter to supplementary duty. To violate the contract collateral obligation is a breach, anyone should bear the default obligation. But in some special circumstances, for example, if the debtor violates the obligations of flaw notification, leading to the losses of property or human injuries of creditors, the debtor constitutes the injury delivery, and at the same time such actions belong to concurrent liability of default and tort. I think that the collateral contract has special character in nature, such specialization determines that the responsibility to violation of contract collateral obligations is only compensation for damage. So its constitution of civil responsibilities should conform to the compositions of default obligation, that is the default act, damage, the causative between the default and damage, and fault. As far as the violation of contract collateral obligation is concerned, if there exist some legal exemptions, the parties should be exempted from civil responsibilities. All of these are summarized into the force majeure, accident and fault of creditor.In addition, this author also holds the personal views on some controversial issues in the academic fields.With the constant progress of the rule by law and people's increasing cognition to it, the notion of the supplementary obligation will not only remain on the discussion of the Jurisprudence but also become a regularized obligation in the law ship. It is certain that the notion of the supplementary obligation will emerge in the rule by law in future and apply themselves to the judicial practice.