The Definition And Justification Of The Collateral Obligation In Chinese Contract Law

Though the fact that the contract law of our country has designed collateral obligation system has been agreed by both academic and judicial circles, the basic issues of the obligation such as the connotation and identification have not yet reached consensus, with arguments exist on the contrary. In addition,since the beginning of collateral obligation theory,it has been challenged, because of which some countries have abandoned the system. So what is the reasonableness and legitimacy of the design in Chinese Contract Law? The answer to this question is the basis of the research on the system. All above is the writing backgrounds of this paper,which will focus on answering the above question.The first part, though historical research, backs to the country of origin Germany to clarify the process, finding the collateral obligation was proposed in response to the theory of positive infringement as the opposite of the major delivery obligation, after which the security obligation theory and subordinate delivery obligation theory were raised. The security obligation was proposed to solve the problem that how to relieve the inherent benefits and how to protect the overall interests when there is a contractual relationship between the parties. Reviewing the responses of the German judicial and legislative to the theory of collateral obligation,with a result that the judicial circle has been using the theory of positive infringement of creditor’s rights to solve the above problem,and in the middle of the twentieth Century,the imperial court had determined the content of the collateral obligation by the way of enumeration. In 2002, The amendment of the law of obligation stipulate the collateral obligation in paragraph 2 of article 241,but the German academic community tend to identify it as the obligation to protect.The second part is a connecting link between the preceding and the following part of this paper,which,according to the origin of the collateral obligations and development process introduced in the first part, defines the collateral obligation as the opposite of the major delivery obligation,and the collateral obligation is further divided into divided into the security obligation and the subordinate performance obligation.We can determine the collateral obligation according to the types of the interests the obligation protects, complemented by the contract agreement.It is a an appropriate method, although there are a few drawbacks of this standard,.The third part introduce how other overseas countries and areas deal with the problem. France set the security obligation in the contract law, but later the "non contractual movement"arose, making concessions to the tort law. In Japan and Chinese Taiwan, the laws have not set the obligation explicitly, but the theoretical circle has always recognized the existence of the collateral obligations, and attempts to explain the contents in the existing legal provisions. England and American, in principle, solve the problem in the contract law, but there are exceptions. Obviously, the countries(regions) did not take it for granted that the problem should be solved by the contract law with the collateral obligation, the choice of the path is still in doubt, and even questioned.The forth part is the core part of this paper,which analyzes the relevant provisions for the collateral obligations in Chinese Contract Law to get a clear understanding of the existing laws and regulations, then discuss the justification of choosing the path of contract law. Firstly, article sixtieth paragraph second sets the collateral obligation definitely, including the duty of protection and the subordinate performance obligation,covering all collateral obligations with the first paragraph Secondly,107th provides the general relief provisions for the injured part in violation of collateral obligation, but fails to relieve the injured part in breach of collateral obligation without agreement. Thirdly,the compensation liability arising from the breach of the collateral obligations should be assured by applying Presumed-default Liability Principle.The contract law can give the injured part more convenient compensation for damages,moreover the injured party should be endowed with the rights to rescind the contract and defense the performance of the contract, which is exactly the fundamental reason and legitimacy of Chinese contract law protect inherent interest.The conclusion of the paper summarizes the content of this article.