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《Peking University Law Journal》 2019-05
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Rethinking Post-contract Obligations

Li Yu;  
There are loopholes or ambiguities in the provisions of the Contract Law and its judicial interpretation on post-contract obligations in terms of the duration of obligations,the nature of liabilities and the principle of imputation,and they are in systematic violation with other obligations of the law of obligation.Post-contract obligations have shown large-scale misuse and abuse in judicial practice,with few positive functions.Post-contract obligations can be divided into protection obligations and performance obligations.Protection obligations are unnecessary because they overlap with the functions of tort law.Performance obligations are unjustified because they violate the principle of private autonomy and equality in private law,which is detriment to protecting the weak in economic life such as workers.The invention of post-contract obligation in German law has its special legal background,which does not exist in Chinese law.In this regard,the post-contract obligation and the pre-contract obligation have the same defects.In addition,unlike the pre-contract obligation,the generalization of the post-contract obligation of performance results in the disadvantage of deviating from the basic principles of contract law.It is more inappropriate for the Civil Code Draft to regard post-contract obligations as general obligations of the law of obligations.The establishment and application of post-contract obligation reflects the common defect that consequence deviating from purpose in modern contract law.It is worth rethinking on both legislative methodology and civil law jurisprudence.
【CateGory Index】: D923.6
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