Studying On Problems In The Judicial Determination Of Contract Collateral Obligation

Contract collateral obligation is the obligation for both parties to the contract to protect each other in personal and property interests other than payments interests, based on the principle of good faith and according to the nature of the contract, purpose, trading habits, along with the development situation, during the contract execution.Collateral obligation of contract is the premise of the judge and bear of responsibility. The judicial determination of collateral obligation in a specific case, is always an important and quietly difficult problem in the practice. In China’s judicial practice, the court has made a meaningful exploration on the application of the collateral obligations in contract, but the understanding and application of the obligations is still in a relatively simple stage. By studying the typical case, the author found that misconduct for collateral obligations of the contract is the most prominent problem in the process of judicial determination, judges often mistake the collateral obligations for the major delivery obligation, subordinate delivery obligation and security obligations. Overall, the theoretical research of Chinese scholars on the collateral obligations of the contract is not yet mature, there are a lot of controversy. China’s Contract Law Article60, paragraph2, the introduction of the obligation, provides a legal basis for the identification of collateral obligations, yet, because of its general and abstract, judicial determination is more dependent on the discretion of the judge, furthermore, the administration of justice process is not yet established a discretionary principles and recognized methods.In the specific terms, the reasons for the confusion of contract collateral obligation and the major delivery obligation are that:firstly, there is no consensus as to the legal source of the collateral obligation foundation in theoretical circles. Secondly, under Contract Law, the provision of paragraph2of article60related collateral obligation is very general, moreover, also, the practice of taking collateral obligations the parties agreed on in contract for major delivery obligations lead to the confusion. As derived by the principle of good faith, collateral obligation of contract and subordinate delivery obligation are similar with each other in some respects, such as the uncertainty. Therefore, how to distinguish between contract collateral obligation and subordinate delivery obligation is relatively more difficult practical problem. This problem is still not resolved completely in theory and practice, the author try to put forward a solution, that is collateral obligation will be set to protect the only inherent interests of the parties, which will make collateral obligation different from subordinate delivery that pay interest to realize the aim of payment obligations in theory.Contract collateral obligations by protecting the personal and property interests of contract parties, maintain the legitimate rights contract relations, maintenance trade security and order, and guarantee the benign social economy and realize social justice a highly efficient operation of value goal.In the existing contract law system, it’s of great urgency to propose a relatively uniform accreditation code and method, on basis of the analysis of collateral obligations in different areas and behavior mode, using the existing judicial experience and academic summary. In the judicial practice, collateral obligation of contract should follow principles as follows:closely relationship principle, principle of benefit measure, strictly limited principle. Specifically, when the creditors appeals to the other party to fulfil the collateral obligations, the judge shall review the contract content to make sure whether the two parties reached agreement on collateral obligation in the contract, and in this process, the principle of good faith should be considered. In absence of the specific contract terms agreed, then, the judge should retrieval relevant regulations, looking for legal basis; In no contracts and the provisions of the relevant laws, the courts have to determine whether the obligations established, based on the principle of good faith, combine with the nature of the contract, purpose, and refer to the industry customs or special deal between the parties.