Research On The System Of The Third Party's Infringement On Creditor's Rights Within The Framework Of Tort Law

Since the 1853 case of Lumley v. Gye established contract creditor's right to appeal the Third Party outside of the contractual relationship, if the creditor's right could be protected by tort law there has been controversy, and the relativity of obligation which constitutes the main obstacles against the third party's infringement on creditor's rights, but with the development of modern tort law theory, a lot of countries have established a system of third party's infringement on creditor's right, and creditor's right has been taken into the scope of protection of tort law as a legal interest. This paper will give some recommendations for establishing a system of the third party's infringement on creditor's right in our country's tort law, which is based on analyzing the obstacles against establishing the system of third party's infringement on creditor's right, and investigating the development of tort law.This dissertation consists of introduction, body and conclusion three parts. The body part is divided into three chapters: origin and development of the system of third party's infringement on creditor's right, the obstacles against the system of third party 's infringement on creditor's right and the reformation of the tort law, and the construction of the system of third party's infringement on creditor's right in our country's tort law.The introduction of dissertation is a brief introduction of the main problem talked in this paper and problem-solving ideals of this issue. The first section of Chapter I takes some examples to analyzing the necessity of the establishment of the system of third party's infringement on creditor's right, then the second section introduces the origin of the system of third party's infringement on creditor's right, and its development in common law countries and civil law countries. In common law countries, the third party's infringement on creditor's right has been fixed as an independent type of tort in tort law through the development of the case, but in civil law countries, the third party's infringement on creditor's right has been not an independent tort, while it is be regulated by the general provisions of tort law.The first section of Chapter II analyzes theory of the relativity of obligation which is the main obstacle of the third party's infringement on creditor's right, and points out that the infrangibility of obligation could be the theoretical support of the theory of the third party's infringement on creditor's right, and third party's infringement on creditor's right does not belong to exception of the relativity of obligation. The second section considers that the establishment of the system of third party's infringement on creditor's right depends on the expansion of the scope of the protection of tort law which establishes the protection of interest.The first section of Chapter III investigates domestic law's attitude to third party's infringement on creditor's right, then points out the necessity of establishing the third party's infringement on creditor's right as an independent tort. The second section analyzes the types and elements of the third party's infringement on creditor's right, considers that because of the weak protection of interest in tort law,"direct intentional"should be the subjective component of third party's infringement on creditor's right, and our country can establish a system of third party's infringement on creditor's right which includes the infringement of claims in contract and the infringement of claims in law, it should not be a secondary system but an independent system in tort law.Finally, the conclusion comments controversy of theory of third party's infringement on creditor's right as the end of this dissertation.