On The System Of The Third Party's Infringement Upon The Creditor's Rights And Bearing Of Responsibility

With the social reform, the creditor's rights are playing more and more important roles in the economical development of a country. In order to protect the creditor's rights from the infringement of the third party out of the debt relations, it becomes more important to determine the system of the third party's infringement upon the creditor's rights. The system of the third party's infringement upon the creditor's rights breaks through the relativity of the creditor's rights in the traditional civil law theory. The establishment of the system is of great value in the aspects of assuring the creditor's interests, maintaining the market order and realizing the social justice and fairness, etc. In this paper, the author's own ideas are presented when the theory of the system of the third party's infringement upon the creditor's rights is introduced and analyzed. Combined with the study of the continental legal system and the US and British legal system, the background, legal basis and constituents of responsibility of the system of the third party's infringement upon the creditor's rights are dealt with. Based on the above, the present situation and future development of the system of the third party's infringement upon the creditor's rights of China are discussed. The paper is divided into five parts in addition to the introduction.In Part I, with the author's historical investigation of formation and development of the system of the third party's infringement upon the creditor's rights in the US, Britain, France and Germany as well as Taiwan, it can be known that such a special infringement type is developed from the judgment of cases in the countries of the US and British legal system and it is completed mainly by the explanations of the general regulations of the infringement behavioral law in the countries of the continental legal system. As a form independent of the responsibility system, the system of the third party's infringement upon the creditor's rights has the creditor's relief approaches added. With the historical investigation of the formation and development of the third party's infringement upon the creditor's rights, it can be analyzed that the interests between balancing the free competition and stabilizing the business order. It is the true objectives of the system to contain the hostile competition, protect the legal competition and promote the economic development, which is also the value of the system.In Part II, the author analyzes and argues over the third party's infringement upon the creditor's rights. It is thought that most of the legal systems are produced under the specific political and economical background and at the same time, most of the legal systems are finally established on the basis of the profound theoretical accumulation. The most important theoretical requisite for establishing the system of the third party's infringement upon the creditor's rights is transfer from the limitless advocating of the individual rights to the comprehensive consideration of multiple interests. Such a transfer is also the process of evolution of the modern civil law to the contemporary one. In the meanwhile, it also becomes the important theoretical basis for the establishment of the third party's infringement upon the creditor's rights to strictly differentiate the creditor's rights from the material rights and then to mutual combine them. The trend of the creditor's rights becoming the material rights is continuously developing, which more intensifies the inviolability of the creditor's rights.In Part III and Partâ…£, based on choosing the traditional ideas, the author thinks that the important elements of the third party's infringement upon the creditor's rights should consist of the following 5 aspects: subject, object, the deliberate subjectivity of the third party's behavior, the third party's behavior causing consequences of losses and the cause-and-effect relations between the third party's behavior and consequences of losses. The study of any infringement system will finally focus on the bearing of responsibility. With the classification of the responsibility of the third party's infringement upon the creditor's rights and study of the subject bearing the responsibility, on the one hand it is assured that the victim's interests can be relieved in time and effectively; on the other one, the doer of the infringement can be punished to be taken as a lesson and let the social public know the consequences of the behavior so as to gradually reduce and even stop the occurrence of such behavior.In Partâ…¤, started from maintaining the legal competition and providing the new relief approaches for the creditor with loss incurred, the realistic significance of establishing the system of the third party's infringement upon the creditor's rights and perfecting the bearing of responsibility are dealt with. Freedom is the requirement of the market-oriented economy. Without the rigorous free competition, the market will loose its soul of development, but freedom is limited. Once it disturbs the business order, it will give multiple impacts, which necessarily brings about the conflict between the freedom of the third party's behavior and the creditor's contracted interests. In order to the resolve such a conflict between interests, it is avoidable for the country to carry out the legislative interference. For the third party's behavior of infringing upon the creditor's rights, the creditor can only ask for the debtor's compensation according to the contract law due to the constraint and limitation of the relative principle of the contract. In the development of the market-oriented economy, the exchanges between people have become closer than that ever before. The business activities have also become more frequent. Under this background, it is inappropriate to restrict the creditor's relief in the range of the contract. It is necessary to seek the relief out of the contract to make up for the inadequacy of the contract relativity. With the application of the responsibility of the third party's infringement upon the creditor's rights, the creditor can ask the third party to bear the responsibility of infringement for the illegitimate behavior.