The Institution Of The Third Party's Infringement Upon The Creditor's Rights

Whether the institution of the third party's infringement upon the creditor's rights should be preserved or abandoned has been a controversial issue among scholars for a long time. Facing so many problems in practice and the acceptance of this institution in the legislations or prejudications in and abroad, should we ignore the practical problems and abide by the principle of the relativity of contract according to the traditional civil code, or accept, absorb and modify it to reconstruct an institutional system which can provide a flexible tool to resolve the practical problems? The dissertation focuses on this institution by analysis step by step.The principle of the relativity of contract is not the unchangeable"forever truth"or the obstacle of the development of the institution of the third party's infringement upon the creditor's rights. In fact, they are consistent. In the evolution of the civil code, with the expansion of the efficacy of debt, the principle of the relativity of contract didn't stay at the first place but evolves with the practice. This institution has constructively broken through the relativity of the subjects, contents and responsibilities of contract, justifying its rationality and potential.The demands of the practice always provide the legislation opportunities. Facing the difficulties of the claims of the creditor and the need for perfecting the legislations, this institution in our country is necessary, and the problem of how to construct it should be resolved immediately. To resolve the above problems, this dissertation is divided into three parts: The first part is on the foundation of the institution of the third party's infringement upon the creditor's rights. This dissertation makes analyzes from two aspects, theoretical and practical. From the theoretical aspect, I focus on three aspects which are the relations between the property and creditor's rights, the nature of legal relationship, and the argument for and against it. The inviolability of debt can be deduced from the inviolability of property; The inviolability of debt can also be deduced from the nature of rights which can dominate and protect the specific realms; The view of objecting the inviolability of creditor's rights is challenged by the analysis of the internal and external efficacy of the relativity of contract, the relationship between the expected interests and the creditor's rights and the significance of rights. From the practical aspect, two cases in and abroad are given to show the two typical situations of the inducement of breach of contract and the infringement upon the goal of creditor's rights. The final result of the two cases provides a lively basis for the justification of the third party's infringement upon the creditor's rights. The analysis of the two cases also shows that this institution developed with the practical needs and it was gradually accepted by the legislations and jurisdictions by many countries.The second part focuses on the breakthrough of the relativity of the contract by this institution from three aspects including the theory, practice and legislation. In theory, the institution will not cause the confusion of conceptions and systems while reinterpreting the relativity of contract from three aspects of subjects, contents and responsibilities of contract. The institutions of relativity of contract and the inviolability of debt don't go against each other. To bind and protect the parties of contract, the former facilitate the exchange, protect the contact's making and enforcement; While with the stance which is beyond the whole contract, the latter is from the angle of binding the third party who is not the direct contractual subjects and not the specific subjects to protect the civil rights and interests derived from the contract, and forward to protect the legal relationship of contract. The relativity of contract concerns more about protecting the interests of the third party, while this institution concerns more about strengthening the protection of creditor. Their common goal is both to protect the safety of the exchange and fairness and justice of the law. In the practical aspect, this dissertation gives two cases on the third party's infringement of the creditor's rights in our country. The cases absolutely testify that, from the difficulties of entering the appealing procedure to the court's acceptance and winning, the claims against the third party's infringement of the creditor's rights did gradually break though the fetters of the contract relativity and is needed by the practice. In legislation,, the dissertation illustrates the breakthrough from three angles. First, the institution is absorbed by many department laws, such as"Law of the People's Republic of China on the Protection of Consumer Rights and Interests","Law of the People's Republic of China Against Unfair Competition","Company Law of the People's Republic of China"and some of the prejudications or interpretations issued by the highest court; Second,"Contract Law of the People's Republic of China"has some flexible articles, which are set for this institution for the future; Third, in the"General Principles of the Civil Law of the People's Republic of China", the regulations and modifications for the behaviors of infringement have provided the space for the institution of the third party'infringement upon the creditor's rights. The introduction of this institution is going to clarify some obscure regulations of the"General Principles of the Civil Law of the People's Republic of China", and compel the whole civil code to improve.In the third part, at the beginning, from the angle of the practice of our country, the dissertation illustrates the necessity of constructing the institution of the third party's infringement upon the creditor's rights from three aspects, namely the absence of the debtor, and the debtor's responsibilities and of the debtor's capacity. Then I construct the system of the system of this institution from four aspects: the status, elements, distribution of responsibilities and compensation for the damage. In the analysis of the status of this institution, I consider its belonging from three angles, namely the improvement for the good, adaptation for the practical needs and the promotion of internal harmony of civil code; In the aspect of the elements, I analyze the framework from the following aspects: subjects, objects, the infringement of behavior, psychological status and the fact and scope of compensation for damage; In the aspect of the distribution of responsibilities, I analyze three situations: first, when the detour has no fault; second, the detour conspired with the third party; third, the detour is induced to breach the contract. Finally, in the aspect of the compensation for the damage, I analyze whether the institution should be applied to the compensation for spiritual damage.From the above aspects, the dissertation has analyzed the theoretical bases, the relations with the relativity of contract and the construction of this institution, and proposes some of my poor opinions. With the development of the practice, as for whether this institution will be adopted by our civil code and how it's going to operate, I believe the legislation and judicial practice in the future will provide us a perfect answer.