Study On The System Of The Third Party Infringing Creditor's Rights

Over a long period of time, the question of the third party infringing creditor's rights is a controversial issue in the extent of the civil law and the legal practical field, the reason is that this theory challenges the traditional theories of the relativity of the creditor's right in the system of civil law and the infringement act. In this article , the author begins the discussion from the background of the third party infringement, and draws the conclusion, after analysing cases of different countries, that infringement has inner effect and extraterritorial effect, with which the relativity of the creditor's right is revealed on inner effect, while the inviolability of the creditor's rights reveals its extraterritorial effect, as an expected property interest, the creditor's right shall be adjusted within the framework of law of torts. However, since the creditor's right has no typical openings, the author holds the view that a balance shall be sought in protecting the interest of the creditor and the freedom of action of the third party; to reinforce this system, it is necessary to strictly control the forming of the third party infringing creditor's rights, and discuss its components in details. Last but not least, given that there is no specific definition for the third party infringing creditor's rights in the legal system in China, the author puts forward reasonable proposals on establishment of the third party infringing increditor's rights in the future in China.This article consists of four parts.The first part is the legal analysis to the System of the Third Party InfringingCreditor's Rights, in which the author simply introduces the third party infringing creditor' s rights, mainly focusing on the contents of the third party infringing creditor* s rights, the background of its establishment and its value. Firstly, the author makes an analysis and comment on the concepts of various the third party infringing creditor' s rights, then raises her opinion: the subject of the third party infringing creditor' s rights shall be the third party beyond the creditor's rights and debts, which does not include the debtor; under the state of indirect infringing creditor's right, the subjective state shall be defined as the direct and intentional action. After introducing the positive and negative views on whether the third party infringing creditor's right shall be adjusted by the law of tort, the author holds that the creditor's right is of inviolability and shall be adjusted within the framework of the law of torts , and further analysis is made. Then the issue of claim foundation within the system of the third party infringing creditor's rights is further probed. Finally, the issue of claim foundation within the system of the third party infringing creditor's rights is further probed.The second part is a comparative analysis on the system of the third party infringing creditor's rights, in which the law and case theories on the system of the third party infringing creditor's rights within the Common Law legal system and the Civil Law legal system are introduced, in the hope that they will be references for the system of the third party infringing creditor's rights which is to be established in China.The third part discusses the liability components of the system of the third party infringing creditor's rights. On the basis of the introduction to various views on the components of the system of the third party infringing creditor's rights, the author proposes that there is no difference between the components of the system of the third party infringing creditor's rights and the common acts of torts, the components of the third party infringing creditor's right are: (1) the existance of legal creditor's rights; (2) the subject of the action is the third party beyond the relationship of debt;(3) the subjective aspects is direct and intentional action; (4) the subject commits infringment; (5) the infringment results in demages. In addition, indiscussing the civil liability of the third party infringing creditor's right, the author believes that the civil liability of the third party infringing creidtor's right can be divided into the third party's independent liability on infringing creditor's right, the non-joint liability of the third party and the debitor, and the joint liability of the third party and the debitor. Finally, the exclusive justification of the third party infringing creditor's right.The fourth part is about the author's thoughts on establishing the system of the third party infringing creditor's right in China. In this part, the author briefly introduced the legislation situation and the legal practice in China, after discussing the legislative basis of the system of the third party infringing creditor's right, considering that there is no specific definition on the system of the third party infringing creditor's right while the occuring of lots of cases of the third party infringing creditor's rights calls for the improvement of relevant systems, the author presents her view that the system of the third party infringing creditor's right shall be included in the future civil code, and the thoughts and proposals on the establishment of the system of the third party infringing creditor's right.