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Research On Collateral Obligation Of Contract

Posted on:2009-12-02Degree:MasterType:Thesis
Country:ChinaCandidate:T F LiuFull Text:PDF
GTID:2166360245490247Subject:Economic Law
Abstract/Summary:PDF Full Text Request
As a new subject, contractual collateral obligation has brought increasing attention in both jurisprudence and judicature field. In traditional theory of contract law, the creation of contractual obligation is according to regulation by law and engagement by the parties, except which there is no any obligation or liability between the parties. Contractual collateral obligation origins from the principle of good faith. It can balance the interests between individuals and the society, and compensate for the deficiencies occurred in laws and contractual stipulations with the function of pursuing virtual justice. Bringing concomitant obligation into law system is not only the refined adjustment of the contemporary contract relationship, but also the acceptance and adoption of the value evaluation trend of concomitant obligation. i.e., pursuing actual equality and maintains the justice of society. Besides, it is also the concrete embodiment of modernization of contract law in the contemporary civil law.There are a lot of problems which are confused on the theory of collateral obligation because of its long history of development. The basic problem of contractual collateral obligation was the lack of systems; in-depth study in China's theoretical circles, understanding is still very fuzzy. In the judiciary, collateral obligation is a stranger to the subject; still exist in many disputes in specific judicial practice. It is have important value for collateral obligation theoretical system of Construction and improve the system that the basic theory of the contractual collateral obligation to do the collation and description, including the concept, Legal basis, the specific type, values and the legal function of collateral obligation.Research contractual collateral obligation the application of the law is of great significance for civil law set up the collateral obligation to achieve the objective of complete, civil law stressed by the spirit of fairness and justice fully, the authority of the rule of law, the seriousness of the comprehensive maintenance. Determined the contractual collateral obligation should be established some standards that to the principle of good faith as the base, close contact, balance the interests of both the burden and risk, using some method that Search Contract and Legal, See precedent, interpretation of the law and case details. Civil liability for breach of contractual collateral obligation under the principle of attribution is fault of the principle of the responsibility. Assume responsibility for a way to continue to perform, Compensation for losses, rescission, etc.Our country refers to foreign theory and judicial case, prescribe it in the fourth chapter of the contract law: "The people should follow the good faith and perform the informing duty, helping duty, keeping duty and so on according to the quality, purpose and custom of contract."these duties are called collateral obligation by professionals. The modernization of contract law and the collateral obligation of their own shortcomings call for China to collateral obligation statutory, collateral obligation statutory is conducive theory of contract law Complete with sound and increased the intensity of the protection order transactions. Though contractual collateral obligation has been stipulate in statute, the theory of incidental obligation hasn't formed an intact system. In view of the contractual collateral obligation the legislative shortcomings, the author made a number of legislative proposals.
Keywords/Search Tags:Contract, Collateral obligation, Principle of good faith
PDF Full Text Request
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