The Research Of The Consequences Of Violating Collateral Obligation Of Contract

The theory of collateral obligation of contract is gradually established in theory and case in Germany. It is an important embodiment of the principle of good faith in contract law. Although article 6, paragraph 2 of China’s Contract Law recognized the collateral obligation of contract, but Contract Law doesn’t make specific provisions about the legal consequences of violating collateral obligation of contract. The legislation regarding the nature of liability of violating contractual collateral obligation, imputation principle, form of liability, whether to be forced to continue to perform, whether to terminate the contract and other specific issues is not clear. In addition, the scope and specific types of the contractual collateral obligation are controversial in theory. That results in swing and confusion of determining the legal consequences of violating collateral obligation of contract in judicial practice. This paper studies the legal consequences of violating collateral obligation of contract on the basis of recognition of the connotation and types of the contractual collateral obligations according to the relevant provisions of China’s laws and regulations and judicial practice of the typical cases.This paper is divided into three chapters:The first chapter discusses the identification of collateral obligation of contract. First discusses the connotation of collateral obligation of contract, analyzes the controversial theories and theoretical development and concludes that the collateral obligation of contract has characteristics of collateral, uncertainty and legality. Secondly, analyzes the difference the collateral obligation of the contract and Nebenleistungspflicht, clarifies the relationship of contract obligation, pre contract obligation and post contract obligation. Finally, discusses the type of collateral obligation of contract, analyzes the views of scholars and Chinese law, lists the specific main types of contractual collateral obligation.The second chapter discusses the liability of violating the contractual collateral obligation. First discusses the nature of liability of violating the collateral obligation, summarizes the legislation and theory of different countries and the practice of the judicial practice in China, put forward the reason of applying the liability for breach of contract. Secondly, it analyzes the principle of imputation of violating the contractual collateral obligation, expounds China’s relevant laws and regulations and judicial practice, make a clear distinction between strict liability and fault liability, explains the rationality of the presumption of fault liability.The third chapter discusses the relief when violating collateral obligation of contract. First discusses the question whether the collateral obligation of contract can be forced to perform, distinguish the specific situation of applying and not applying, analyzes the specific conditions of applying specific performance. Secondly, discusses the damage compensation scope of violation of contractual collateral obligation, affirms the application of foresee the principle, analyzes the scope of compensation of the performance interest and inherent interest, and denies the non property damages in the liability for breach of contract. Thirdly, discusses the question whether the creditor can exercise the right of defense when violating collateral obligation of contract, analyzes the focus of controversy in the theory and judicial practice of our country, discusses the possibility of exercising the right of defense from the angle of theory and case study. At last, discusses the question whether the contractual collateral obligation violation can lead to the termination of the contract, summarizes the judicial practice of our country and domestic and foreign theoretical controversy, discusses the possibility of exercising the right to terminate the contract from the perspective of condition to exert the rescinding right, and expounds the specific conditions of exercising the right to terminate the contract.