The Study On The Contractual Protection Obligation

The contractual protection obligation, arising from the parties to the contract, based on the good faith principle and the purpose of the contract, and being the counterpart of the payment obligation, is the obligation of one party for the protection of the other in respect of the other party's inherent interest. The obligation is based on the civil theories and precedents, and the function of which is to balance the rights and interests between individuals and society, and to promote the substantive justice as well. The contractual protection obligation originates from the"good faith duty"and"good faith lawsuit"in Roman law. After the German and France's works on such, they develop to the contractual protection obligation, to which the civil law countries such as Japan succeed. A great part of the contractual protection theory is learned from Japan and Taiwan District by our country.In legal practice, the contractual protection obligation and safety protection obligation are similar to each other, but the two of which have the independent legal value and components, and are applied to the different areas. In legislation, our country shall perfect the rules on the contractual protection obligation, and specify the extent to which it applies, and analyze the types and content of such, taking into consideration the nature, purpose, content of the concrete contracts and the boundary of the contractual protection obligation, to establish the proper standards and ensure the due application of it.To protect the body injury and property damage by contractual protection obligation is an ideal chose. The modern contract law puts more emphasis on the contractual justice and the cooperation between the parties to the contract for the contract being an organic integrity, the core of which is the trust between the parties. The personal and property rights in respect of the core relationship need special attention. The perfect of the contractual obligation and the emphasis on the status of such obligation mean a lot to the increase of the ways for pursuit of remedies and the provision of the sufficient remedies.The protection obligation in our contract law is the result of succession. Although the contract law has made general provisions on it, our research on which is not enough as our emphasis on the research is the safety protection obligation in tort law. The aforesaid fact is not suitable to the development of our legislation and precedents. In addition, our research on the contractual protection obligation mainly follows the German; however, the collection of the relative materials is limited. The further development of the theory of the contractual protection obligation requires the improvement of our legislation and legal practices.The length of the paper is approximately 32000, and the paper is composed of the following five parts:In the first part, the introduction of the contractual protection obligation, we set out the extent, the characteristic, the history and our current research condition of the contract protection.The second part, the determination and application of the contractual protection obligation, we set out three principles for the determination of the contractual protection obligation: good faith principle, the principle of the party agreement and the priority of the law principle, and for the purpose of application divide the contractual protection obligation into action obligation and construction obligation in the contract protection, the components and application standards of which are described in detail.In the following argument, we put emphasis on the legal value of the contractual protection obligation. Hereby we divide the analysis into two parts, in the respect of the legal value, we set out five values of the contractual protection obligation: the pursuit of the substantive equality, the embodiment of the good faith, the awareness the human rights, the embodiment of"interests and obligations", the realization of the contractual justice; in the other respect, we set out the indispensible role of the contractual protection obligation in the obligation clusters of the contract.The fourth part sets out the characteristics of the contractual protection obligation based on the comparison between the contractual protection obligation and the safety protection obligation, and compare such two obligations in respect of the applicable subject, duty of care, liability principle, the relation to the realization of payment interests and the limitation of actions, and explain the significant meaning of the emphasis on the protection obligation to the increase of the ways for pursuits of remedies and the provision of sufficient remedies.The final part is to further analyze the current condition of the contractual protection obligation in china and puts forward the suggestions to the legislation with regard to the contractual protection obligation.