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我国的司法实践中对于附随义务的理解和适用还处于探索阶段,尤其对于违反附随义务的法律后果等问题,在没有深入的学理探讨和司法实践的情况下,实际应用起来往往会存在偏差。在一个案件中,当事人是否有某项附随义务及其内容、后果如何,一般由法官依各个债权债务关系的具体情形加以判定。附随义务存在的这些弊端造成了在现阶段其调整合同关系、平衡当事人之间、当事人与社会间之利益关系的能力仍十分有限。如要在更大范围、更高层次上实现附随义务的制度价值,应该在立法上尽早将违反附随义务的法律后果明确化、制度化,以保证适用该制度的正确性、公正性。附随义务的内容包括通知、协助、保密和基于诚信原则而产生的其他义务。本文拟阐述附随义务的种类及在经济领域的运用,违反附随义务应承担的法律责任形式,指出我国合同立法中应进一步完善关于附随义务的规定。
In our country’s judicial practice, the comprehension and application of accompanying obligations are still in the exploratory stage. In particular, there are often discrepancies in the practical application without proper inquisition and judicial practice, especially for those that violate the legal consequences of accompanying obligations. In a case, whether the parties have an incidental obligation and its content, the consequences, usually by the judge according to the specific circumstances of the various claims and liabilities to be judged. These shortcomings of attendant obligations have caused their current ability to adjust their contractual relationships and balance the interests of the parties and between the parties and the community. To realize the system value of the incidental obligation on a larger scale and at a higher level, the legal consequences of the incidental obligation should be clarified and institutionalized as early as possible in the legislation to ensure the correctness and fairness of the system. Incidental obligations include notification, assistance, confidentiality and other obligations arising from the principle of good faith. This article intends to explain the types of accompanying obligations and their application in the economic field, and the legal responsibility forms that should be assumed in violation of the accompanying obligations. It is pointed out that our country’s contract legislation should further improve the provisions on accompanying obligations.