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Comparative Study Contract Accompanying Obligation Of Practice And Development Of The Sides Of The Taiwan Straits

Posted on:2017-06-10Degree:MasterType:Thesis
Country:ChinaCandidate:J YanFull Text:PDF
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With the development of economy and the change of social environment,the civil legal relation subject growing their own rights and interests protection requirements and the existing contract law and other laws and regulations of the space increases gradually,the trial practice departments are increasingly using the principle of honesty and credit and other legal to evaluation of social disputes,especially the civil contract.Contract as accompanying obligation according to the principle of good faith,in the process of the development of the contract in order to protect the parties shall bear personal or property interests of peer-to-peer payment obligations outside of obligation,has always been a difficult problem in the judicial practice in our country,and the academic research on contract of accompanying obligation is less.Although civil code of Taiwan of accompanying obligation is not clear stipulation,but has been established in the field of Taiwan civil contract law,its types and connotation by the court's decision and increasingly form Taiwan.So this article wants through the strait of accompanying obligation orientation and apply them,fully explore the trajectory of accompanying obligation and development,in order to provide benefits contract in our country the development of accompanying obligation.Ahead of the first chapter in this paper referring to contract the historical trajectory of accompanying obligation,including germination of accompanying obligation in Roman law,the prototype of the accompanying obligation in the judicial practice in France,Germany,legal theory and judicial practice about the exploration of accompanying obligation and established,after the development of accompanying obligation on both sides of the straits are introduced,understand law of accompanying obligation theory attention across the Taiwan straits and legislation on the delimitation performance of accompanying obligation,at the same time,combined with the two sides of the Taiwan straits legal regulations and judicial practice,put forward the main source of accompanying obligation law,contract agreed by the parties,and the principle of good faith.The second chapter of the Taiwan straits compares and analyses the main types of accompanying obligation theory in Taiwan on the accompanying obligation includes help to realize the interests of the creditors to pay accompanying obligations(from payment obligations)and avoid the infringement on the personal or property interests of creditors(such as protection obligations),practical departments also have two opinions: accompanying obligation or just is the duty of protecting and accompanying obligations to protect the interests of the payment and inherent interests(i.e.,has the auxiliary performance and protection function);Domestic scholars and legislation,no clear the types of accompanying obligation,but noted that the accompanying obligation including attention,the obligation such as notification,assistance,and confidentiality,loyal.In combination with the practical situation of the two sides of the Taiwan straits,this paper argues that has the following main types of accompanying obligation: to protect the duty,inform obligation,the obligation of confidentiality obligations and assistance.And the third chapter,the fourth chapter is the components of the violation of accompanying obligation on both sides of the strait,the contract responsibility,relief means were discussed,and through the comparative analysis,it is concluded that accompanying obligation in violation of the rules for fault-presuming principle;Components of accompanying obligation includes the obligor breach of contract,the accompanying obligation has damage fact,the accompanying obligation in violation of a causal relationship between damage fact and fault presumption,the debtor has four elements;Accompanying obligation based on the principle of good faith in all stages in the development of contract,breach of accompanying obligation may undertake the contracting fault liability,liability for breach of contract,damages,etc.;Violation of accompanying obligation by damages,take remedial action seeking remedy,terminate the contract.
Keywords/Search Tags:Contract accompanying obligation, The principle of good faith, The principle of imputation, Constitutive requirements, Methods
PDF Full Text Request
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