Research On The Legal Liability For Breach Of Contract Collateral Obligations

The theory of contract collateral obligation first originated from Germany,which was developed gradually in theory and precedent,and then gradually recognized by other countries' legislation and judicial practice.In essence,it is the application and development of the principle of good faith in the field of contract law.According to article 60,paragraph 2,of the contract law of China,"The parties concerned shall abide by this principle and fulfill their obligations of confidentiality,assistance and notice in accordance with the purpose,nature and trading habits of the contract.The rule is to contract the general provisions of the collateral obligation,but at present,our country "contract law" to the provisions of the contract,the concept of collateral obligation has clarity,in breach of contract responsibility nature of the collateral obligation,imputation principle,and the violation of collateral obligation can exercise at the same time in the form of performance or terminate the contract and the provisions of the relief to clarity.In the theoretical circle of our country,there is no unified opinion about the problems mentioned above in the obligation of contract attachment.With the rapid development of social economy and the different characteristics of customs and habits in different regions of China,it is inevitable that there will be disputes over the issue of collateral obligation in China's judicial practice.In this paper,the research of collateral obligation,on the basis of China's relevant laws and regulations,and combined with typical cases in judicial practice,first clear the concept and types of collateral obligation,and the rightness of the violation of collateral obligation responsibility nature,discusses the imputation principle and relief way,and finally put forward Suggestions of perfecting our country's contract accompanying obligations.This paper is divided into four chapters:The first chapter elaborates the connotation of collateral obligation.Firstly,the paper expounds the development process of collateral obligation in different countries and regions,and analyzes the three stages of collateral obligation one by one: the embryonic stage,the formation stage and the development stage.Second about contract definition of collateral obligation is discussed,through respectively to different scholars in mainland China and Taiwan to the definition of collateral obligation analysis,and based on the contract and payment obligation,collateral obligation after the first contract obligations and contractual obligations,comparing the similarities and differences is proposed in this article by "narrow" collateral obligation,namely contract accompanying obligations in this article refers to the collateral obligation in the process of the contract.Finally,the paper discusses the characteristics of collateral obligation of contract: uncertainty,collateral and universality.The specific content of the obligation attached to the contract: the obligation to inform,the obligation to assist,the obligation to protect,the obligation to keep secret.The second chapter discusses the legal liability for breach of the obligation attached to the contract.Firstly,this paper expounds how to determine the liability for breach of collateral obligation,studies the different views of Chinese scholars on the application of liability for breach of contract and liability for tort,and proves the application of liability for breach of contract through comprehensive analysis.However,in some special cases,liability for breach of contract or liability for tort can be applied.Secondly,it discusses the constitutive elements of breach of collateral obligation: the act of breach of collateral obligation,the damage result caused by the act,the causal relationship between the violation and the damage result,and the fault of the actor.Chapter three deals with the remedy for breach of contractual obligations.First of all,the author analyzes whether the right of defense can be exercised simultaneously,and discusses the possibility and necessity of exercising the right of defense simultaneously when the collateral obligation is violated by expounding the focus of the debate on whether the right of defense can be exercised simultaneously in our theoretical circle and judicial practice.Secondly,it analyzes how to define the scope of compensation for damage when the obligation attached to the contract is violated.This paper agrees that the principle of predictability should be applied in the compensation for damage,It focuses on the difference analysis of compensation scope between performance benefits and internal benefits,and puts forward the view that compensation liability should also be assumed when non-property damage is caused.Finally,this paper discusses whether the right to terminate the contract can be exercised if the obligation attached to the contract is violated.The author summarizes the practice of judicial practice in our country and the theories at home and abroad,discusses the possibility of the creditor exercising the legal right to terminate the contract when the obligation attached to the contract is violated,At the same time,it introduces the specific conditions of exercising the right to terminate the contract.The fourth chapter discusses the defects and ways of perfecting the contract collateral obligation in our country.First of all,the problems existing in our country's contractual collateral obligations are expounded.For example,China's laws do not have a clear definition on the concept and scope of collateral obligations,which still leads to disputes in the theoretical field.Because the law does not clearly define the consequences of violating collateral obligations and the principle of attribution,the application of this principle in China's judicial practice inevitably leads to bias,affecting the realization of fairness and justice.Secondly expounds the further perfect our contract to the path of the collateral obligation,one in Germany for contract legislation for reference to collateral obligation,in China's legal development on the basis of the actual,and general principles can be applied with a specific list of combining the way of collateral obligation is regulated,the way the characteristics of both certainty and flexibility,can easily in the practice of dealing with all kinds of forms of collateral obligation.Finally,the author thinks that the violation of collateral obligation belongs to the category of liability for breach of contract,breach of collateral obligation of strict liability imputation principle should not apply,should apply the principle of fault liability,the imputation principle,not too the psychological burden of aggravating the parties to a contract,but also to better achieve the purpose of the contract law to encourage trade.