从合同法和司法判例看我国合同附随义务适用范围的限缩

The Application of Contractual Collateral Obligation Limited by Contract Law and Cases

合同附随义务旨在保护合同履行过程中的固有利益。合同附随义务在适用上有区分的必要,应该做狭义和广义之分。在具体的案例中,合同的目的、交易习惯和合同合理预期制约着合同附随义务的适用范围。在司法实践中应更明确地界定附随义务的范围。反对合同附随义务的道德化倾向,而且应该通过侵权法上的危险责任原则,结合合同附随义务来把握民法上诚实信用原则的适用的尺度。

In the process of executing a contra ct, the contractual collater al obligation would protect the inherent interests along the way. There is a necessity to distinguish the narrow sense of its range of application from the broad sense. In specific cases, the contract purpose, trading practice and reasonable expectation would all exercise its restraints on the scope where we can apply the collateral obligation of contract. In justice practice, it's better possible to define the contractual collateral obligation so as to oppose to its trend of moralization. It suggests that we confine the principle of honesty and credibility in civil law to a reasonable scale through the combination of the danger liability principle in tort law with the collateral obligation.