The Research Of Contractual Collateral Obligation

"The law comes apart from society gradually since enacted", Savigny’s words still ring in the sky of law. Since human society has entered into the era of monopoly capitalism from the era of economy, contract law which reflect the time stamp is changed also. In the era of economic, the principle of contract freedom flying high, the main body of the equality and the exchange of equality has become the basic judgment of modern civil law. In the monopoly capitalism period, contract freedom has been unable to abide by strict, thus appeared the principle of good faith and freedom of contract neck and neck in the field of contract law. The contract accompanying obligations also arises at the historic moment. The expansion of the contractual obligations puts forward higher requirements to the obligation, which is benefit for the implementation of the contract and the parties concerned on the protection of the inherent benefit. At the same time, it also brought a lot of problems. Contract accompanying obligations has undergone more than hundred years of development, and it has affected many countries and regions, but the accountability system has not yet formed, some basic theoretical issues of collateral obligation is still not clear. On the acknowledgment and legal application of collateral obligation is still face many problems. At the same time, the emergence of collateral obligation expands the field of contract law, the scope of protection extends to the inherent interests of the parties, violate the inherent field of tort law, breaking the contract law and tort law strictly binary boundaries. Under the existing legal framework, because of the different laws and regulations, it is hard to protect the interests which appear crossing and overlapping phenomenon.The status of collateral obligation in contract law is self-evident. In theory and in practice, however, failed to get the attention they deserve, whose value function is difficult to play. Given lack of collateral obligation in the theory, the article study some questions from the theory of the present situation. The collateral obligation was analyzed in legislation and judicial practice in our country respectively, and summarized the research content of this article: the ontology of collateral obligation, the cognizance of collateral obligation and the legal consequence of breach of collateral obligation. Starting from the characteristics of collateral obligation, this paper analyzes the connotation of collateral obligation, in comparison with the related concepts to clear connotation of them, and then introduces the function of the theoretical basis and the value of the collateral obligation. On this basis, by combining relevant theories and judicial practice cases, proposed the concrete determination of collateral obligation which should grasp four principles. At the same time, many relatively mature styles of collateral obligation in judicial practice were proposed. In last past, the legal consequence which betrays collateral obligation is analyzed, and the part is relatively lack in judicial. The last part includes the nature of the collateral obligation, field for performance problems, imputation principle, the violation of collateral obligation, the violation of the collateral obligation with violation and the concurrence of liability for breach of contract and tort liability.