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Against Credit Rights To Civil Liability Study

Posted on:2009-05-16Degree:DoctorType:Dissertation
Country:ChinaCandidate:D W HuFull Text:PDF
GTID:1116360248950655Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
The topic of the thesis is Research on the Civil Liability of the Credit Infringement. It is mainly focuses on the related legal subjects of the behavior, nature, relation of consequent and compensation of the credit rights. The credit rights is a new field of modern law secience. It is an important right of the continental law system coutries. It develops along with the economics, finance and the credit reporting law system. The protection of the credit rights is accepted by the Civil Law of Chile, Germany, Austria, Portugal, and Taiwan, and also by the rules and regulations or the legislation practices of Spain and Japan. The analysis of the civil liability of the credit infringement is the need of the credit reporting development and human rights protection.The author considers that the study of the credit rights is involved the theory, economic, society background and the social rules investigation. And then the thesis brings forward the role of the credit protection clause in civil law and the detailed description of the clause related to the reality of our country. The thesis has done in-depth research on the above topic by the method of case study and comparative analysis. It falls into three parts which including five chapters. The first part is the foundamental theory of the credit rights - it is the chapter one. The second part is the analysis of the civil liability of the credit infringement which including the chapter two, three and four. The third part is the research of the legislation of the credit rights in our country - it is the chapter five.The first part is the foundamental theory of the credit rights. It is divided into four parts including the occurance, meaning, nature and connotation of the credit rights. The first section is the occurance of the credit rights. The thesis argues that the right of credit is depended on the reputation in Roman law from the historical point of view and the five elements of the independ credit rights seperating from the reputation. From the real economic life point of view, the modern credit reporting enhances the existence of the right of the credit. This section displays that the occurance of the credit rights is the result of the credit law development and the new connotation of the credit law. Only if the people realize that the right of credit is the right which can bring out the property benefit, it comes into being the legal thoughts root. The credit rights results in the moral norms. When it strengthens the moral norms, it becomes the opposite of the legal liability which is the right of not invaded and obtains the fair society evaluation by fulfilling the principle of good faith. The right of credit is the legal feedback of the objective needs of the commercial society. The thesis indicates that the legal feedback of the objective needs of society economics is successional during the historical progress from the moral liability to the principle of good faith by law and then to the appearance of the credit rights. Merely it is different in the different periods. All in all, the appearance of the credit rights is the result of the evolution of the moral of the credit and the reputation. The second section focuses on the meaning of the credit rights. It uses the same research method of the first section and studies on the Roman law, Gemany law and Angol-American law deeply. It focuses on the research of the credit rights development in the history of the Gemany and the credit of the real society and the legislation in Britain and USA. In the meantime, it proposes that the professional reputation should be included into the scope of the credit protections. Therefore, it considers that the right of credit is the right which obtains fair society evaluations and the relative benifits though trade and professional activities. The third section is the discussion of the nature of the credit rights. There are viewpoints of "property rights", "the right of personality" and "the mixed rights " in the academia. This section proposes that the credit rights has the quality of the right of personality by the analysis of the three factors of the right of Locke, the inside structure and characters of the credit rights and the guiding ideology of the Civil law in Germany. The fourth section is the content of the credit rights. It studies the different contents of the credit rights in the different countries and then proposes that the credit rights is the right which composed by different subordinate rights which including the six rights of credit rate increasing, credit utilization, credit maitaining, informed, objection and credit rights treatment.The second part is the essential part of the thesis with seven sections. The first section is the types of the credit infringement. It depends on the reality when any right should be protected by law. So it is necessary to study on the types of the credit infringement. According to the data on hand, the credit infringement can be divided into three areas. One is the credit infringement in the credit reporting, another is in the commercial related credit infingement in the unfair competition, trademark and patent, the last is the credit infringement among natural persons in the traditional daily economic activities.Although the latter two areas are familiar to the people, the thesis focuses on the credit infringement in the credit reporting area. There are four characters: (1)The credit infringement to the credit subject is straingthly caused by the improper credit information spreading. (2)It is apparently different credit infringement between the credit reporting and the traditional economic activities. (3)The credit infringement in the credit reporting is related to the information and maily appears the pure economic loss to the person hold the credit rights. (4)The credit infringement in the credit reporting is involved the opportunity benifit loss. The author considers that it should explore in more open view on the credit infringement, esp. the principle of tort liability and the victim relief, otherwise it probably leads to the bias of the composition of the credit infringement liability and legislation negligence. The second section expounds the subjective elements of the credit infringement person. The credit protection is a system project. It contains the integrated system of the credit protection of the constitution, the criminal law, the civil law and other rules and regulations."Malice" is the subjective elements of crime to the infringement in our country and Gemany, Japan and Taiwan area. But in USA, "Malice" leads to punishment compensation. By law against competition by inappropriate means and law of trademark, it is provided the civil relief and also the criminal punishment. The author considers that it should be responsible for the credit infringement intentionally and faulty under general situation. But in some situations, even if the party has no subjective liability, he or she should also take the duty. For example, one commercial bank provided the wrong information to the credit reporting organization, and the organization provided the credit reports with the wrong information to other commercial bank. Under this condition, the person holding the credit rights can claim that the organization should be responsible for correction and sends letters to the person who has used the victim's credit report. So, the credit infringement should apply for the principles of "intention", "faulty" and "unblamed". The third section is the nature of the credit infringement liability. The nature of the credit infringement liability may be different in some situations. The example is the situation of providing the unfair recommendation letter. It is different in different countries to be considered as contract liability or tortious liability. In Italy, Spain and Portugal, it is the contract liability. In France, Belgium, England, Scotland and Netherland, it is the tortious liability. In Greek, Gemany and Austria, the choice belongs to the victim. But if putting aside the labor law, in some wide extent, the nature of the credit infringement should be tortious liability. The fourth section is the relation of consequent of the credit infringement. The intervening relation of consequent is the character of the credit infringement liability. The result of the credit infringement is mostly the intervening factor. The fifth section is the compensation of the credit infringement. Under most conditions, the credit infringement leads to the credit rate debasing, the opportunity benefit and expectation benefit probably obtained will be unfulfilled. It leads to the different compensation for the credit person in the different countries. Generally, the credit infringement is the property loss and mental pain. The property compensation is actually divided into two parts. One is the quality of loss filled up and the other is the quality of solatium.The opportunity benefit and expectation benefit belong to the quality of loss filled up, such as labor opportunity loss. The heart and mental pain are the quality of solatium. The sixth section is the method of the civil relief of the credit infringement. It is divided into relief on property and non property. The main method of the non property is to return to the original state. The method of property includes the actual loss compensation and solatium paying. As to punishment compensation, it is decided by the coordination of the civil law and criminal law. Because of the apparent property of the credit rights, the main method of compensation should be property loss, the supporting method is solatium. The seventh section is the exemption of the credit infringement liability. If the loss of the credit person is based on a certain psychological state and behavior, the invader can defend according to a certain factor. The exemption causes include "fair situation reflecting", "authorized information source", and "the speech in the government" etc.The exemption cause is not a kind of right but a defense of liability. The third part expounds the target of the thesis with two sections. The first section is the international legislation of the credit rights. The credit rights protection is divided into seven modes in the Civil Codes in the world. Among all of these modes, Chile-Germany mode and Taiwan mode are the rational and scientific: Except the civil law, there are many rules and regulations to protect the credit rights all over the world. The principle of responsibility intersects the above modes. The second section is the legal analysis and suggestion of the credit protection in our country. From the review of the credit protection system, there is the credit protection system in our country. The problem is that the reputation and the credit rights are prescribed seperatly in criminal law but the right of credit is still under the reputation in civil law. The author suggests that our civil code should refer to the Taiwan legislation mode which the reputation is under the credit rights as a subordinate right, we should awknowledge the legal person enjoys the right of personality and prescribe the credit infringement in Torts. The credit infringement clause in our country should be described as the follows: one party should be responsible for the torts liability if his harm action to the other party's credit rights leads the other party's credit rate to be reduced and its financial trade or professional interests to be damaged.
Keywords/Search Tags:credit rights, infringement, credit reporting
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