Injuring Obligatory Right By The Third Party

The reasonableness and essentiality of injuring obligatory right by the third party has been admitted by judicial practices in most countries.But there are still controversies about the basis of the right of claim in china.The author believes it is necessary to discuss the reasonableness of injuring obligatory right in the theory system,but more important,we need to realize that the unique value of the system is the deeper reason of its existence.The responsibility of injuring obligatory right should be restricted within reasonable limits.We must persist the principle of non-invasion character of obligatory right relatively,keeping the balance between the creditor and the third party .my thesis starts from the legislations and judicial practices of this system in other countries,and studies the theoretical basis and the value of this system from historical and comparative perspective.Then,the author discuss the system design and provide some legislative advices.The whole thesis includes preface,main body and conclusion.the preface puts forward the question and gives the purpose of writing this thesis,limiting the scope of demonstration.The main body includes five chapters:ChapterⅠ,the conception and comparative study about the legislations and judicial practices of injuring obligatory right by the third party.It proves the reasonableness of this system has been admitted by most countries.ChapterⅡ,the logical and theoretical discussion about the responsibility of injuring obligatory right by the third party.First ,the author gives two premises:one is the distinguish between real right and obligatory right has relativity,the other one is the coexistence of the responsibility of injuring obligatory right by the third party and the relativity of obligatory right.Second,the author believes the property of obligatory right cannot get enough protection.This truth is the starting point to admit the principle of non-invasion character of obligatory right.Last,the principle of non-invasion character of obligatory right should be restricted into reasonable scope,persisting the relativity of this principle.ChapterⅢ,the introduction about the function and value of the system.This system reflects the requirements of vantage point of obligatory right,provides new remedy for creditor,regulate the third party′s behaviour.ChapterⅣ, the demonstration of the system design and constituted requirements in detail.These requirements guarantees the system can be correctly applied.ChapterⅤ,the observations of the legislations and judicial practices of this system in china.The author believes we should learn from German Law,regulating the third party′s behaviour with the general clause of violating fair practice.But that′s not enough.The legislation should also make concrete rules to apply with the general clause.The last part is the conclusion. The conclusion refines the author′s opinions about the responsibility of injuring obligatory right by the third party.