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Theory of collateral obligation of contract

Author: LiuCunMing From: www.yourpaper.net Posted: 2010-06-22 10:25:07 Read:
Keywords:   the contract; collateral obligation of good faith   legal liability obligations;
Abstract: is based on the principle of good faith to the collateral obligation is the expansion of contract obligations, it focuses on the development of the whole process of adjustment to the contract, the contract fairness of benefits among the parties, thus the theoretical circles and judicial circles widely recognized in this paper, the concept and the accompanying obligations theory, contractual collateral obligation origin and development of basic theory of value as well as the breach of collateral obligation of contract law, and other basic issues to explore and research.
The concept of 1 collateral obligation and relevant theory
The collateral obligation is a concrete and objective principle of honesty and credit, fully embodies the principle of honesty and credit of the interests of the measure function.On the supplementary duty concept of multiple perspectives.Civil law countries in the formulation of law does not explicitly address attached obligations, legal circles also no unified concept of appellation.German scholars of collateral obligation concept name "from the attribute of obligation".While common law countries through a large number of cases, identified in the contract except the obligation of good faith obligation has various forms, such as the duty of disclosure obligations, advice, duty, the duty of loyalty, intelligence duties, also did not have a unified name for this class of obligations.Law of Taiwan area of our country is called with the obligation, is called collateral obligation.Mr. Wang Zejian, known as the attached characteristics as compared to the performance of such obligations obligations, mainland scholars apparently accepted this view, consistent called collateral obligation.Visible, the collateral obligation in the title is not a concept, its connotation is the colorful view.
This view shows the collateral obligation of the characteristics of non conventional and illegal.Mr Wang Zejian thinks, the collateral obligation refers to the law has no clear stipulation between the parties have no clear agreement, but in order to maintain the interests of the other party, and social general trading ideas, the parties should be obligations.This view in the description of the collateral obligation features at the same time, also that the collateral obligation for the interests of the measure results.Mr Wang Liming thinks, the collateral obligation refers to the contract on the basis of the principle of honesty and credit, according to the nature of the contract, the goal and the transaction custom should take notice, assistance, confidentiality obligations, the obligation is attached to the main payment obligation, so called the collateral obligation.
This view emphasizes the relationship between collateral obligation and the honest credit principle, but does not specify the collateral obligations characteristics and China's "contract law" article 6O second consistent.In the law circle of our nation has attached obligation concept is divided into broad sense and narrow sense.Some scholars think, the collateral obligation is not only in the performance of the contract process, the contract is established before and after the termination of the contract, have the collateral obligation.China's Taiwan region, scholars in the construction of the theory of incidental obligation to pre-contract obligations, contractual obligations and the performance of the contract care, protection, collaboration and other obligations, collectively referred to as "collateral obligation".With the different view is that, the collateral obligation refers to the performance of the contract process, to realize the benefit of creditors to protect creditors or the personal or property interests of the debtor, follow the principle of honesty and credit, according to the nature of the contract, the goal and the transaction custom and should fulfill notification, assistance, privacy, protection other obligations, obligations.
2 contractual collateral obligation origin of development and value theory
2.1 the development of origin
Rome law period, consensual contract as a citizen of Rome and to the Gentiles trade form, is typical of the credit contract.With the development of the business, the Romans will inevitably deal with the Gentiles, and not the transaction form of civil law for the Gentiles, even can use, is very inconvenient.Therefore, praetor peregrinus had to accept the complex transaction form of civil law on the simple business practices, that concluded in contract only desirable.When a dispute arises, consensual contract not to contract that is very easy to determine the rights and obligations, then praetor peregrinus in the program "in good faith should join the words", the parties class plus reasonable uncertainty obligations.
With the passage of time, the law on the transactions entered the civil law.Praetor peregrinus absorbed "in good faith should" program, it has gradually developed into the good faith lawsuit civiles.
After entering in twentieth Century, some of the major capitalist countries in the monopoly period, social polarization between the rich and the poor, the format of the contract freedom of contract has gradually become popular, the above the cover, then it gives people is just the form of freedom, and the unlimited development zone to be the very unfair.So many countries began to limit and correct the principle of freedom of contract, from emphasizing the form of freedom to pursue Essence Fairness, justice, honesty and credit principle as the freedom of contract "justice" scale has been widely used, the collateral obligation and accompanied by the rise of the principle of freedom of contract and the decline of the principle of honesty and credit and produced, its function is to make the rights and interests of the parties to obtain perfect implementation, in order to reflect the ultimate objective of legal fairness, justice.
2.2 of the value of collateral obligation theory -- the principle of honesty and credit
The honest credit principle embodies the source to the natural law of fair, justice, require trading people abide by credit, not fraud, in the pursuit of their own interests at the same time, to protect the interests of the other transaction phase.The principle of honesty and credit is not determined, with specific cases of specific, its purpose lies in the balance between parties and between the parties and the interests of society, is the embodiment of the moral value in the law.Honesty and credit is the first community to maintain peace and stability in exchange, every business person should comply with the universal moral good and honest, abide by credit.At the end of the nineteenth Century the beginning of the 2O century, civil law has been aware of the discretion of judge is significant to make up the gap, so the introduction of this general terms of the principle of honesty and credit in the code."German Civil Code" was first established the principle of good faith in the law of obligation position.To establish the status of the principle of honesty and credit has brought the civil law legislative power and judicial power redistribution, the judge according to the principle of honesty and credit for a large number of case activity."Collateral obligation" is the principle of good faith in the case based on the.
China's "contract law" sixth stipulates that: "the parties to exercise their rights, obligations shall follow the principle of honesty and credit."This shows that in our country, honesty and credit has become a basic principle of contract law.The principle of honesty and credit is for the parties to exercise their rights and obligations of the proposed requirements, it is not only in the course of the performance of the obligations of the contract specification, and require the parties to take after the first contractual obligations and contractual obligations."Contract law" forty-second, 43, 60, 92 the provisions of the parties at all stages of development on the basis of the principle of good faith in contract obligations, including the first breach of collateral obligation of contract obligation, contract obligation and.
3 is a violation of contractual collateral obligation of the legal liability of
Different stages of collateral obligation in contract breach of different stages of development, the collateral obligation arising from the nature of the legal responsibility can not lump together, must be based on the different stages of development of the contract are qualitative.
3.1 contracting fault liability
China's "contract law" article forty-second of contracting negligence responsibility made specific provision.Contracting fault liability is in the process of concluding contract, a party intentionally or negligently violates the pre-contract obligations, so that the other side of the reliance interest in damage, the civil liability shall be borne in accordance with the law.Contracting fault liability in contract is not established, the contract is invalid or revoked, but on occasion a valid contract may also exist in the contracting fault liability.The contracting fault liability is neither the tort liability is not a new civil liability of the liability for breach of contract.Contracting negligence is the process of contracting, a party on the other side of a certain relationship trust interests of the parties, the parties to the contract and the formation of a kind of non - tort law on the contact and relationship of trust, therefore, are not in the standard of conduct, imputation principle, the burden of proof, when asked for the validity of tort law a set of rules of law.Contracting fault liability not valid contract exists for the premise, and apply the principle of fault responsibility, it is a branch of the contractual liability.Liability for contracting negligence occurred in the stage of concluding the contract, parties must have the legal acts for contracting, and be bound by this behavior, while the other side of this behavior will have a reasonable trust to a contract.
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