On The Construction Of Collateral Obligation System In China

Collateral obligation is an important legal system in Contract Law, and its jurisprudence basis is the principle of good faith. It raises more thorough and specific requirements for the performance of contractual obligations, and in addition to promoting transactions, it also stabilizes the trading order, safeguards the transaction security and reflects the equity and justice of law. With reference to the foreign theories and legislative and judicial experiences, China prescribes collateral obligation in the Contract Law of the People's Republic of China. Nonetheless, the legislative regulation of collateral obligation needs improvement, systematic and extensive studies in jurisprudential theories are needed and the application of this system in judicial practices are far to be unified. By adopting historical, comparative and practical analyzing methods and with reference to the precedent studies, this paper makes elementary discussions on the construction of China's collateral obligation system and proposes some proposals for improving China's collateral obligation system aiming at to provide some reference in the future improvement of China's legislation and jurisdiction.Except the preface and conclusion, this paper is composed of three parts.Part One introduces the history of collateral obligation, explains the definition of collateral obligation based on the analysis of various kinds of theories, and by comparing collateral obligation with the main payment obligation, collateral payment obligation and non-real payment obligation, further specifies the forms of collateral obligation such as the notification, assistance, confidentiality, protection and obligation of omission etc., and analyzes its characteristics.Part Two discusses the functions, values and jurisprudence basis of collateral obligation, points out that collateral obligation has auxiliary function, protective function and equity function, analyzes the idea of value of collateral obligation, i.e. safety, efficiency and equity, and indicates that the jurisprudence basis of collateral obligation is the principle of good faith.Part Three discusses how to construct China's collateral obligation system, after pointing out the situation and problem of China's collateral obligation legislation, analyzes and discusses respectively the nature, imputation principle, constitutive requirements, legal consequences of breaching collateral obligations, and proposes some proposals to improve.