On The Legal Effect Of Breach Of Collateral Obligation In Contract Performance

Since the beginning of the 20 th century,with the rapid development of economy and society and complicated social life caused a great impact on the concept of the civil law tradition,the individual standard to the social standard changed,freedom of contract principle also gradually to the displacement of the principle of good faith,the concept of contract law will gradually from the pursuit of formal justice to turn to the pursuit of essential justice,value orientation from the method of stability to social justice,give attention to two this has given rise to the diversity of sources of contractual obligations,the contract on the collateral obligation originated.Collateral obligation has balance the interests between the parties and functions of interests between the parties and society,which request the parties to fulfill not only the legal provisions and obligations as agreed in the contract,the contract relationship between the whole process of development,and shall,in accordance with the principle of good faith,to do the duty of care of kindhearted administrator,the other in order to achieve better and to protect the interests of the opposite party of the contract.However,due to the collateral obligation is uncertain,the formation of the theory and practice on more decided by the doctrine of precedent,and therefore has some questions not clear,to the judicial practice in the use of collateral obligation brings certain difficulty and worry.The accessory obligation is complementary to the contractual obligation,which is bound to be perfected in practice.This paper discusses the concept,form,legal effect and imputation principle of attachment obligation,and puts forward some reference standards on how to grasp and judge the attachment obligation in practice.The overall structure of this paper consists of four parts,which are the introduction,the summary of the attached obligations,the analysis of the responsibility for violating the attachment obligation,and the current status and perfection of the legislation in China.The first part is the introduction.In the performance of the contract,the legal effect of violating the attached obligation is the core of the research,and the relevant experience from abroad is used for reference.Using the comparative method,historical method,analysis method and literature research,the responsibility for the violation of collateral obligation,imputation principle,the relief way further concrete analysis,and through the investigation and literature to comprehensive thorough grasp the problems for study.The second part is to write the summary of the attachment obligation,and the mastery of the concept of attachment is the prerequisite for the study of this paper,and it is also the basis for the deep excavation of the legal effect of the attached obligation.In this article,we start with the definition of the attachment obligation.First,we should know what is attached with the obligation,what is the characteristic,and what type is included.The views of the various doctrines are then put together to make a more profound and comprehensive understanding of the attached obligations.The third part is the analysis of liability for breach of attachment.This paper describes the principle of imputation in violation of collateral obligation.Then it points out the advantages and disadvantages of the present two principles.After that,the constitutive elements of the attachment obligation are analyzed in detail,so as to determine whether the legal provisions on the attachment obligation can be applied.In the end,the author makes a description of the existing relief mode,and lays a foundation for the writing of the proposed legislation in the fourth part.The fourth part is the present legislation status and improvement of the attached obligations.Pointed out about the lack of unified rules of collateral obligation legislation principles,there is no clear legal consequences,and puts forward Suggestions to solve these problems,hoping to development of China's theory of collateral obligation to provide some reference.