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On The Collateral Obligation Of Contract

Posted on:2016-11-17Degree:MasterType:Thesis
Country:ChinaCandidate:W J ChenFull Text:PDF
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Since the beginning of the 20 th century, the rapid developed economy and complicated social life have caused a great impact on the civil law tradition. The individual standard has changed to the social standard,contract-free principle gradually shifted to good-faith principle. With these changes, the concept of contract law made a transition from the pursuit of formal justice to the pursuit of essential justice, while the value orientation also transmitted from stable method to social propriety, which has given rise to the diversity of sources of the contractual obligations.Contractual collateral obligation has appeared from that. Collateral obligation has the function to balance the interests between parties and the interests between the parties and society, which request the parties to fulfill both the legal provisions and obligations agreed in the contract, and in all contract relationships, one party should do kindhearted administrator of the duty of care to another party based on good faith, in order to achieve better and to protect both interests in contract.However, due to the uncertainty of collateral obligation, and more of its theories and practices are formed by cases, some questions still unsolved, the use of collateral obligation is difficult. In relative to the main contract obligation, collateral obligation is auxiliary, which determines the collateral obligation must be continuously improved in practice. This paper discusses the concept, the form, the legal effect, the imputation principle and other points of collateral obligation, and put forward some reference standards on how to use and judge collateral obligation.Besides preface and epilogue, this paper consists of four chapters.In the first chapter, the paper introduces the concept and theoretical basis of collateral obligation. Collateral obligation includes pre-contract, in-contract and post-contract obligations. Besides, it discusses the legal nature of collateral obligation, and concludes some basic theory in the respects of civil law transition, economics and value orientation.In the second chapter, the paper analyzes the types of collateral obligation. Besides the elaboration on types of collateral obligation, it also tries to further discuss the application of collateral obligation in the Department Law, and then points out the possible impact on collateral obligation caused by different market position.In the third chapter, the paper discusses the legal effect of collateral obligation. It mainly discusses the liability forms and principles while violating the legal liability of collateral obligation,moreover, discusses whether the violation of collateral obligation lead to a fundamental breach of contract.In the fourth chapter, the paper states the current situation of the collateral obligation legislation in our country, and how to perfect the legislation and judicial application of collateral obligation. Though it has earlier formation, more related theories and cases, collateral still need to be improved on the legislative and judicial system so as to enhance its operability in practice. Finally, the paper discusses the justiciability and criterion and other issues while violating the collateral obligation.
Keywords/Search Tags:collateral obligation of contract, legal liability, liability principle
PDF Full Text Request
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