论合同附随义务违反的归责原则与法律后果

Study on doctrine of liability fixation and legal effects of violating incidental obligation

附随义务是债务人基于诚信原则,为维护债权人的固有利益,在给付义务之外所负担的必要注意及保护义务。在判断附随义务存在与否及其履行与否等问题上,债务人主观因素起着决定性的作用,因而附随义务的违反以过错为归责原则,这符合附随义务的性质、目的及交易实践。违反附随义务,债务人应当承担债务不履行责任,其最主要者,为承担损害赔偿责任,于例外情形还可成立强制履行和违约金责任,及构成合同解除之原因。

The aim of incidental obligation is to protect inherent interest of creditor. Differing from obligation of performance, incidental obligation is based on the reliance relationship of parties. Subjective cognizance of debtor is a decisive factor in the course of deciding whether there have incidental obligations or whether they have been performed. Therefore, to base liabilities of breach incidental obligation on doctrine of negligence is in accordance with the aim of incidental obligation and the practice of business. To violate incidental obligation, debtor must take liabilities for breach of contract, and compensation for damages is the main form of liabilities. In addition, debtor may also bear liabilities of enforcement, and breach of contract damages in some special conditions. Sometime violating incidental obligation can become cause of dissolving a contract.