Study On The Third Party Beneficiary Contract

Many countries and regions have the legislation and practice about the third party beneficiary contract system, while it is not clear in China's legislation. Although China's special law such as "maritime law","insurance law" has stipulated similar terms like the third party beneficiary contract system's effect, there are insufficient on logic basis due to the lack of legislative authority from civil law, and which has no general applicable legal significance for any contract because the special law is only applicable to the typical contract. Therefore, some problems arouse such as whether it has the regulation about the third party beneficiary contract system in China, whether the current system can replace the third party beneficiary contract system to play a role or not, whether the system should be constructed and how to construct in China, and so on. There have been some heated arguments for the problems in China's theoretical circle.In China's judicial practice, the cases are increasing because the benefit for the third party in the contract cannot be achieved generally. There often are the opposite arguments on the applicable law to such disputes between the upper and the lower courts, between the court and the parties and between the parties. The judgment has not unified standard for such cases because of the controversies about whether the third party beneficiary contract system's effect is suitable for the cases. The parties in such cases often seek appeal, petition for objections to the judgment. The number of such civil retrial cases per year is accounted for more than a quarter of the total number in Hubei higher people's Court in recent years where the author is working. It can be cognized common from here. Therefore, the fact that the third party beneficiary contract system is not clear in China directly leads to not only low efficiency of transaction, the transaction security not been guaranteed, litigation costs and waste of litigation resources, but also not agreeing with the world development trend of contract law.This paper starts to study from the basic theory of the third party beneficiary contract system, and then focuses on solving the problems whether it is necessary and feasible to construct and how to construct the third party beneficiary contract system in China. The full text is divided into five chapters: Chapter ?, the legal definition of the third party beneficiary contract system. This chapter mainly researches the basic issues such as the third party beneficiary contract terms, concepts, and classifications, which can define the basic connotation of the third party beneficiary contract clearly in this paper, and can provide the necessary theoretical basis for this paper's further research. For example, what is the relationship between the third party beneficiary contract title and other third party beneficiary contract terms? Whether the third party beneficiary contract has to have agreed to the direct claim right of the third party in the contract? And so on.There are different rules and practices in the foreign countries and regions having acknowledged the third party beneficiary contract system. This chapter mainly intends to avoid ambiguity due to uncertain concept and connotation or influence the system implementation effect. This chapter clarifies the object of this paper is only the type of contract in which the third person can claim the interest to the parties according to the beneficiary entitled by the contract. In addition, the structure and properties of the third party beneficiary contract and the contract interest object restrictions are also discussed in this chapter.Chapter ?, the theory of formation and international practice about the third party beneficiary contract system. This chapter mainly resolves the theoretical dilemma whether there is a conflict between the third party beneficiary contract system and the privity of contract in the process of development of the third party beneficiary contract system, then studies the modern connotation of the privity of contract as the theoretical breakthrough turning point for research of the relationship between them. This paper claims that the relationship between the third party beneficiary contract system and the privity of contract is complementary and unified, and they both take effects commonly to the third party beneficiary contract. This chapter also researches the theoretical and practical basis of the third party beneficiary contract, as well as the two major legal system's legislation and comparison about the third party beneficiary contract system.Chapter ?, the China's protection practice and system investigation on the benefit for the third party. This chapter mainly researches on the theoretical disputes whether China's legislation existing the third party beneficiary contract system and any other alternative system or not, and so on. This chapter analyzes the drawbacks of China's current protection to the benefit for the third party in the contract or relevant system through legal disputes in real cases, then demonstrates the necessity and feasibility to construct the third party beneficiary contract system in China.Chapter ?, the basic construction of the third party beneficiary contract system is the key point of this paper as well. On the basis of previous chapters'researches, this chapter clearly defines the most basic theoretical issues involved in the construction of the third party beneficiary contract system firstly, such as why the third party beneficiary can be agreed in theory, how to specify the third person according to the third party beneficiary contract, the benefit for the third party and his relative legal status, the relations with other systems about the third person's protection, and so on. Then, this chapter analyzes the different ideas and theoretical controversy about the constitutive requirements and the validity requirements. After then, the parties' behaviors and their effectiveness in the contract are explored in detail in this chapter. Finally, this chapter elaborates the subjects, causes and remedies for breach of the third party beneficiary contract. This chapter focuses on the solution to the benefit for the third party on the effect and the principal part of legislation regulation with the third party beneficiary contract's change and subject's breach. It also solves the problem which one is more important to protect between the benefit for the third party and the rights of the parties. The contents of this chapter are helpful to construct the third party beneficiary contract system thoroughly and can promote to pave the way and clear the obstacles for the effective operation of the system.Chapter V, the construction of the third party beneficiary contract legislation in our country. This chapter pointing at the shortage of China's present legislation about the third party beneficiary contract, and separately explores China's legislative choice from the construction of its macro system layout as well as its specific provisions of micro design system. Finally, this chapter puts forward the specific legislative suggestions on constructing the third party beneficiary contract system as a whole in china.