The Civil Liabilities Of A Third Party's Infringement Upon Contracting Relations

?.The framework and primary content of the articleApart from preface and conclusion,the thesis consists of six chapters.Preface is a brief introduction of the causes to choose the topic,the main contents of text and the main research methods used.Part one,consisting of chapter one and chapter two, compares different systems protecting contracting-stage interest and dissertates these systems' historical evolution in order to discuss the feasibility of establishing the system regarding the civil liability of a third party's infringement on prospective contractual relations.Part two, consisting of chapter three and chapter four,dissertates the necessity and Justification of establishing the system regarding the civil liability of a third party's infringement on contractual relations by analyzing the present status of contractual-benefit protection in China and analyzing the theory foundation and basic value of establishing the aforesaid civil system. Part three,consisting of chapter five and chapter six,mainly dissertates in detail how we shall establish such kind of civil system by elaborating on the constitutive elements of a third party's infringement on others' contractual relations and corresponding liability.The closing part of the thesis summarizes and restates the author's opinion.Chapter one,consisting of two sections,compares different law systems that protect a contractor's interest at the contracting stage.Section one mainly elaborates on how Anglo-American law countries relieve the reliance interest at the contracting stage.In Anglo-American law system,there are two situations of protecting such reliance interest:One situation is that one party of the contract hurt the other party's reliance interest.Relief of this is mainly based on contract law related theory.The other situation is that the reliance interest of a contractor is infringed by a third person.Relief of this is mainly based on tort law related theory and regulation.In this section the author will mainly discuss the relief of a third party's infringement of reliance interest in contemporary Anglo-Saxon law system,typical tortious act and corresponding typical case.Section two mainly elaborates on Continental Law System's relief of a third party's infringing contractual relation.Countries and regions of Continental Law System take different attitudes toward relief of the reliance interest when a third person infringes a contractual relation and leads to a failure to establish the contractual relationship.In France,though the litigation system on a third party's infringement of contractual relation and the general principle that contract being infrangible has been established in the case Borney & Desprez V.Dutrieu & Isola Frere,it is regretful that France tort law just protects contracts that have been in existence.This means that contract-to-be, null contract,revocable contract,performed contract,lawfully terminated contract,LOI and agreement under discussion are all not under protection of France tort law,even when they are infringed by a third person.In Germany and Taiwan China,however,though we can not find specific article of corresponding law system on a third party's infringement of contractual relationship in the Civil Code,we can find some general articles regulating this. For example,article 826 of Germany Civil Code stipulates that people who infringe others in the way violating bonis mores shall indemnify.Civil Code of Taiwan has similar regulation in article 184-1.That is to say,if a person infringes other people's contractual relation on purpose in a way violating bonis mores,and thus terminates or halts the contractual relation, this infringing person shall bear corresponding civil liability hereof.Chapter two is a brief review of the historical evolution of a third party's infringement on contractual relations.This chapter is a brief review of the historical evolution of a third party's infringement on contractual relations in common law and its status quo in contemporary Anglo-American society.Our country has yet to establish the civil obligation system on infringement of prospective contractual relations and other countries and regions of continental law mainly offer legal relief in terms of general legal interest,whereas the common law system has already stipulated the civil obligation system of infringement on prospective contractual relations by a third person,therefore this chapter mainly elaborates on the historical evolution of corresponding systems and legal cases in Anglo-American countries.The "prospective contractual relations" in common law The Restatement(Second) of Torts are basically equivalent to the contractual relations at the contracting stage in continental law system.In those countries of Anglo-American law system,the civil relief measures to deal with a third party's infringement on prospective contractual relations have developed along with a third party's infringement on the credit relations upon the valid establishment of the contract,Treating a third party's infringement on contractual relations as tort has a relatively long history,which can be roughly divided into three evolutionary stages. Time before 1850 is the first stage,in which the contractual relationship has been protected by law and should not be infringed by such illegal acts as luring,fraud or slander.But at that time the litigation in this respect was rather unsystematic and each type of contractual relations in need of legal protection had to be particularly defined,moreover,the main purpose of litigation is to stop the defendant's illegal acts.Roughly speaking,time between 1850 and 1890 is the second stage.Along with those new legal conceptions such as "infringement" and "contract",a unified infringement rule on a third party's infringement on contractual relations emerged.During this stage,contractual relationship was gradually viewed as a type of "property" which deserved the protection of the law and should not be infringed by various illegal acts with Lumley v.Gye as a symbol case.It was not until the late 19th century that the common law circle extended the conception of contractual relations as property to non-employment contractual relations and prospective contractual relations.Time after the year of 1890 is the third stage,in which the common law court admitted that the contractual property relations between the contractors should be protected by the law and be offered corresponding legal relief measures when infringed by a third person.However,in some cases,when the contractual relations are against the inflictor's right of participating in the market competition,a compromise should be made to balance all parties' conflicting interests by means of equilibrium.The relevant laws of contemporary common law countries has already embodied the legal relief system of a third party's infringement on contractual relations and stipulated the civil liability system on a third party's infringement on prospective contractual relations.Among these countries the United States has the most definite stipulation.with Section A B and C of the 766th clause in American Restatement(second) of Torts clearly states.Chapter three analyzes the present situation of China on the protection of the interest at contracting stage.Section of this chapter briefly elaborates on related law system.At the contracting stage,a contractor's interest includes reliance interest,personal interest and property interest.The corresponding relief law system is the present law system on contracting negligence liability and the Tort Law.However,the Tort Law protects such absolute right as personal right and property right at the contracting stage,but the contracting negligence liability is relative liability not binding a third person other than the contractors. So,according to present Chinese law,we can not relieve the infringed party when a third party infringes a contractual relation leading to a hurt of reliance interest.Thus,China present law system has a blank to be filled out regarding relief of a party's reliance interest at the contracting stage.Section two of this chapter mainly elaborates on the relationship between a third party's infringing contract and related civil system.This section also discusses whether it is possible to relief infringed contractual relation by means of scholars-recognized law system on this and the present anti-unfair competition law.At the contracting stage,the contract has yet to be in existence,and the contract relationship has yet to be in existence.So,civil law system regarding a third party's infringement on contract can not be applied.At the same time, though most of the tortious acts of a third person are improper competitive act,and thus disturbs market order,some of such tortious acts are not improper competitive acts,and are just some acts aroused by envy or hostile towards the contractual relation.In such case,the infringing person just hopes the contract to break,because he/she does not take part in the competition.In this case,anti-improper competition law shall not be applied.A third party's tortious act is,in nature,a tortious act between equal civil parties.The most important thing that the reliance interest hurt party care is the relief method,because he need to be indemnified.Furthermore,from the point of abroad lawmaking,though Germany has made detailed anti-improper competition law,a infringed party can also cite Article 826 of the Germany Civil Code to protect and relieve his own reliance interest.Anti-improper competition law is also very developed.But,detailed elaboration on relief of prospective contract infringed by a third person is made in The Restatement(Second) of Torts,and a lot of leading case arose in practice.So,there is no obstacle taking this into the regulation of civil law.Chapter four mainly elaborates the theoretical basis and the value of the civil law system regarding a third party's infringement on contract,and lead to the conclusion that it is justified to establish such a civil law system in China.To establish such a civil law system is the requirement of bona fide principle,and is consistent with the need of protecting reliance interest.Such a law system is also consistent with the trend that the scope of tort law is expanding.The civil law system regarding a third party's infringement on contract has stable theoretical basis,and may safeguard contracting freedom,safeguard dealling security,lower dealling cost,improve efficiency,and protect contractual relation from the headstream.So,such a civil law system is significant in giving the contracting parties all-round protection regarding their legal interest at the contracting stage.Chapter five elaborates on the constitutive elements of a third party's infringement on others' contractual relations.In finding out the constitutive elements of this,the author gives a full consideration of the fact that contractual relation is not public to other people,the fact that we must balance the freedom of a third party's act and a contractor's reliance interest,and the fact that we must balance the interest of an individual and the interest of the society.The author also refers to China's mainland's scholastic study,American Restatement(Second) of Torts and Continental Law scholastic study and draws the conclusion that the constitutive elements of a third party's infringement on others' contractual relations should be:positive one and negative one.The positive one has four aspects:1.The third person intentionally infringes others' contractual relations;2.The third person has conducted harmful illegal act upon others' contractual relations;3.The third party's infringing act does damage to others' contractual relations;4.A cause-effect relationship exists between the third party's infringement and the damage of others' contractual relations.The negative aspect means that if the infringement making person can provide the following general defensive reasons:not on purpose,in due execution of his/her duty,proper self-defense,right of necessity,with the victim's consent,and the following special defensive reasons:duely executed his/her duty and having given the infringed parties duely advise,he/she can be exempted from or be lightened of civil liability.Chapter six mainly elaborates on the civil liability that shall be borne when a third person infringes a contractual relation."Where there is right,there is relief" and "where there is damage,there is indemnification" are basic legal principles.So long as a contractual relation is broken by a third party's intent tortious act and thus lead to reliance interest damage,the third person shall bear civil liability hereof unless he/she has defensive reasons. Regarding the mode of bearing liability,the third person shall eliminate nuisances,stop infringing,resume the original state,return the property,and indemnify the damages.The infringement making person may also be compelled to apologize and eliminate the sideeffect of his/her act.On damage indemnification,the infringement making third person just need to indemnify the actual loss of the infringed person,because civil law has the principle of equality.The reliance interest to be indemnified includes direct loss and indirect loss. Because the situation of a third party's infringement on contractual relation is diversified,the fact of who shall bear the civil liability is also diversified.Firstly,it may be the infringing third person alone to bear the liability;secondly,it may be the infringing third person together with one of the contract parties to bear an unreal joint liability;thirdly,it may be the infringing third person together with one of the contract parties to bear joint liability if they conspire maliciously.As to the action limitation of the damage indemnification for the infringement of contractual relations by a third person,we should mainly consider efficiency without ignoring the holiness of personal rights.Using Chinese research fruits and the U.S tort law as reference,the author proposes that the comparatively proper action limitation on the claims against a third party's infringing contractual relation should be no less than 3 years.?The innovations of the article and its insuffienciesA.The innovations of the articleOnly by comparison can we judge whether there are innovations or not.When the author was writing this thesis,there is just one article of about 10 thousand words published on the Internet in July of 2005.Compared with that article,this thesis has the following innovations:First,in the elaboration,the author cited a lot of first-hand British and American reference material,especially related thesis,leading case,law articles with expound of Anglo-Saxon Law system.The citation of the materials is original.Second,the author found out the blank point of law by comparing the law systems regarding contractual interest protection.Then the author,in proper sequence,gives a systematical and all-round elaboration on the social economy background,the present status, the theoretical basis,the value and the establishing details of the system regarding a third party's infringement on contractual relation.Third,for the purpose of elaboration,the author makes use of various study method, such as horizontal comparison,material study,history study,case study,etc.The author also applies knowledge of legal history,legal philosophy and knowledge of other subject to achieve a sufficient and full elaboration.Fourth,after systematic elaboration,the author draws the conclusion that China shall stipulate in Tort Law the civil liability of a third party's infringing a contractual relation.The author also put forward his own opinion on the four constitutive elements,the defensive causes,the civil liability and the action limitation of a third party's infringement on contractual relation.B.The insuffiencies of the articleWith the confines of material and the author's capability,the thesis has some defects, though the author spares no effort. First,this thesis tries,from the standpoint of a Continental Law country,to research on the civil liability system regarding a third party's infringing a contractual relation.But up to now,no Continental Law country or region has stipulated this.Though Anglo-America countries have related regulation and American Restatement(second) of Torts has related elaboration on this kind of tort,the two law systems are of huge difference.Especially,we should not ignore the influence on substantive law caused by the difference of procedural law. Confined by the materials in hand,the author does not deal with this,and will deal with it in the future.Second,because of the fact that little research on this subject has been carried out in China,the fact that no leading case can be found in judicial practice,and the fact that we can not find out experience material in China,the author finds it hard to make a detailed and all-round elaboration on the civil liability system on a third party's infringing a contractual relation.Thus,more detailed analysis and elaboration have to be made in the future after we have enough judicial practice and try-and-err to gain enough experience.Third,the author applied a lot of foreign material to elaborate.Though being faithful, expressive and elegant is the author's goal in translation,flaws and defects may not be avoided.The author apologizes for the inexact translation and expression if any.The above-mentioned defects are just those can be found by the author at present.There may be some potential defects to be corrected and amended after being pointed out by experts, or being found out by the author himself.