Font Size: a A A

A Study On The Third Party's Infringement Of Creditors' Rights

Posted on:2012-08-07Degree:MasterType:Thesis
Country:ChinaCandidate:Z S HuangFull Text:PDF
GTID:2166330335957116Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Because of relativity of debt (or relativity of contract), traditional civil law denied the system of the third party's infringement of creditor's rights. As the change of the notion of the civil law from the formal justice to the substantial justice, the focus of the legal protection has been transferred from the freedom of individual to the safety of the social interests. And more, the status of debt has been constantly raised and the function of the debt has been more prominent, the creditors need much more steady contracts in the business. In the legislation and practice, the civil law and the common law have confirmed the system of the third party's infringement of creditor's rights by gradually. The nature of the third party's behavior is infringement of the creditor's legal interests. Although the article 2 of'tort law of the people's republic of China'(the tort law for short) don't list the creditor's legal rights in the range of the protection. The extent of the civil rights and interests is open. It may include the creditor's legal interests by legal interpretation. If the third party infringes the creditor's legal interests and cause the loss, he or she should subject to the tort liability.The level of protection about the legal interests is not as perfect as the rights because of its'uncertain range. But the article 6, paragraph 1 of the tort law adopts vague rules and don't ask for different conditions of liability. So it can't properly reflect the attitudes of the law how to protect the rights and the interests. Because the creditor's legal interests is not open to any third party and the status of value is much lower than the creditor's rights, and the distance between the creditor and the third party is far away. In order to balance freedom of action and protection of interests, we must set up some limits for the liability when we deal with cases of infringement by the tort law. It asks for intention and violating public orders and morals. The interpreted clause for applying with the third party's infringement of the creditor's rights is drawn out on the basis of the analysis.'If the third party violates public orders and morals on purpose and cause the loss of the creditor's legal interests, the third party should subject to the tort liability.'The Paper consists of three parts: preface, text and conclusion.The preface raises some questions, makes certain the aim, and sets up the structures.The text includes four chapters.Chapterâ… :By analyzing the development of the system about the third party's infringement of the creditor's rights in the modern civil law, this chapter investigates the attitudes how the current legislation, practice, and cases cope with the infringing cases in the major countries of the two law systems and sums up the foreign experiences.Chapterâ…¡: This chapter scans through legislations before the tort law, and analyzes the civil rights and interests in the Article 2, paragraph 1 of the tort law. It finds that the protected objects are composed of civil rights and civil legal interests. This chapter researches the nature of the infringing, then obtains a conclusion that the creditor's legal interests belong to the civil rights and interests. The list in the Article 2, paragraph 2 can't exclude the creditor's legal interests.Chapterâ…¢: Firstly, the tort law should protect rights and legal interests at different levels. On the basis of the viewpoint, it discusses the reasons why the liability should be set up limits. Secondly, the element of tort liability is a major point of the paper. This chapter explains the intention and the behavior of violating public orders and morals in detail. It illustrates the loss and the causality. Finally, the chapter analyzes the use of typical cases.Chapterâ…£: This chapter discusses the relationships between the third party's liability and the responsibility of breach of contract, the third party's liability and the right of subrogation, the third party's liability and the protection of obligation right.
Keywords/Search Tags:the tort liability, the third party, legal interests, elements of tort liability
PDF Full Text Request
Related items