合同法附随义务违约责任归责原则浅析

我国《合同法》第42、43条规定了缔约过失责任，第60条规定了合同履行过程中的附随义务，第92条规定了后合同义务。附随义务理论在我国《合同法》中被肯定下来，是学说继受和法典继受的结果，然而要使其真正衣土化，在我国生根成长，尚有很长的路要走。特别是，违反合同履行过程中的附随义务和后合同义务的归责原则，现行法律没有作出明确规定，给司法实践带来了困难。从法律规定附随义务的立法初衷等因素考虑，违反合同法附随义务的违约责任采用过错责任归责原则和过错推定的举证方式具有合理性。

On the Liability Criterion on the Incidental Obligation of Contracts

Article 42 and 43 of Chinese Contracts have provided the fore obligations the parties should comply with before concluding a contract between them. More than, article 60 prescribes the incidental obligations the parties should assume in their performance of the contract. The parties must also abide by the rear contract obligations even after the contract relationship is over, The incidental obligations thus entered into Chinese Contracts, which is the result of inheritance both thoughts and legislation. However, there is still a long way to go before such a theory is fully and efficiently employed in the field of jurisprudence or in judicial practice. Especially, in the process or after performance of the contract, if litigant violates the incidental obligation, China＇ s existing laws do not provide which liability criterions should be used. This brings difficulties to the judicial practice. The paper had explored the question, and demonstrated the reason that the liability criterion of incidental obligation of contracts adopts the principle of fault liability and the way of proof presumptive evidence of fault.