Breach Of The Duty Of Protection The Liability For Damages

With the development of cases and theories,the duty of protection has been recognized as a contractual duty by modern contract theories,even expressly provided by law in many countries.Such as it's expressly provided by Germany's new debt law and the contract law of China.Different from the principal contractual duties,the duty of protection doesn't service to protect the expectation interest.It only services to protect contractual parties and their property from being injured during contract performance.Therefore,with the creation of the duty of protection,the extent of contract relation has expanded and contractual liability has been aggravated.Based on the duty of protection provided in Germany's new debt law,this paper intends to analyze the following problems:the concept ,the nature,,the foundation of law,the history,the effection to Taiwan and mainland in our country,the ability of violation of the duty of protection,and do research on the theretical and prictical problems.This paper contents four parts:The first part is mainly about the definition and the feature of the duty of protection and points out that the main significance of the duty of protection is to protect the inherent interest of the contractual paties.The emergence and development of the duty of protection are attached to the collateral duty.So this paper analyzes the contents and the extension of collateral duty,points out that the duty of protection is one of the contractual duties different from the collateral duty.By comparing the duty of protection and other contractual duties of the distinction,and further that the duty of protection is an independent contractual duty to its characteristics more clearly.In addition,this section also analyzes that the legal basis of the duty of protection is the integrity of legal principles and legal basis of the specific provisions.The second part of the duty of protection the main traces the emergence and development in Germany.View of the 1990"German Civil Code"system of barriers on the debt payments has been found in refuse to pay and payment delay,the remaining obstacles in the third type of payment,some scholars have put forward a positive theory of infringement claims.Shortly afterward,the German scholar Kress proposed the source of the duty of protection,"in order to make the other paties to the contract not because of the impact of their damage,the creditor and the debtor must take care of each other."After the positive theory of infringement claims was put forward by Stab,Larenz Professor puts forward the"no legal obligation to pay the original debt relationship"theory,that the parties come into contact from the preparatory stage of the contract by the ongoing trade negotiations or contacts to form a"no payment obligations of the original relationship between the statutory debt",including the duty of protection and duty of loyalty.Professor's piont of view for Larenz,Canaris propose"unified protection obligations"doctrine,the obligation to protect the theory to the extreme.Germany's new debt payment method improves the barrier system of payment and the contractual relationship the obligation to protect the various stages of development to be separate provision.The third part is to introduce the impact of the duty of protection in civil law in Taiwan and mainland of China.The Taiwan regional civil law is impact of German law,that the duty of protection is one of the specific types of collateral duty,breach of the duty of protection,will consititute full payment,shoud bear the liability.Scholars in Chinese mainland believe that the violation of the collateral duties(including the duty of protection),the inherent interest of the damage caused by the parties,constitutes injuring.I believe that,in violation of the collateral duties,simply to cause the loss of expectation,or both result in loss of expectation interest and inherent interest,the establishment of a breach of contract;only in the breach of duty simply caused by the collateral duties loss of inherent interest in the circumstances that leeds to breach of contract and tort liability.The fourth part analyzes the breach of the duty of protection the liability for damage.First of all,recognized the duty of protection traditional civil liability system has brought to the problem,because of the violation may also causes the loss of expectation interest and inherent interest,in the traditional system of civil liability for breach of contract and tort liability can not give comprehensive legal parties teleif,and the responsibility of competing theories have encountered difficutties.Secondly,on the breach of the duty of protection the nature of damages a lot of controversy,this paper adopts the distinction between contractual and tortious responsibility,says that the violation of the duty of protection in the nature of damages is still a contractual liability,contratual liability but expand the scope of in the inherent interest,and the contractual obligation to tort occurs"displacement".Finally,based on the Germany's new debt law with the relevant provisions,this paper analyzes the responsibility for damages and termination of the contract and the related issues.