Study On Institution Of The Contract For The Benefit Of Third Party

The contract for the benefit of third party refers to the contract in which the parties set for the purpose of the third party and the debtor agree to pay to the third party and the third party directly obtains rights of claim. In both Civil Law System and Common Law System, the institution of the contract for the benefit of third party plays an important part in the field of contract. This paper focuses on the issues of institution of the contract for the benefit of third party,explores the principle of the institution, learns from the experience of Comparative Law, reviews the status of the institution in China, and provides some suggestions of legislation on construction of this institution in our country.In addition to the introduction and the conclusion, this paper is composed of four chapters.Chapter I discusses the definition of the conception of contract for the benefit of third party. This part is the basis of the full paper. Firstly, there is a general definition of the meaning of the contract for the benefit of third party. It is pointed out that this paper only discusses narrow sense contract for the benefit of third party, which gives the rights to the third party. Then it tells the five important characteristics of the contract for the benefit of third party. Secondly, to better understand the meaning of the contract for the benefit of third party, it is compared with other relevant legal institutions which also involve three parties relations, including the transfer of claims,the trust contract and the insurance contract. So the particular functions and characteristics can't be replaced of the contract for the benefit of third party are obviously. In the last part of this chapter, the author analyzes the structure of the relationship of the contract for the benefit of third party. There is a relation of compensation between the creditor and the debtor, which plays a decisive role to the establishment of the contract. There is a relation of consideration between the creditor and the third party, and a relation of performance between the debtor and the third party. These relations establish the precondition of the whole paper.Chapter II pays attention to exploration of the contract for the benefit of third party in view of comparative law. First in Civil Law System, the system of the contract for the benefit of third party has required a lengthy process to establish because of complying with the old rules of"no person shall for the other contracting". ?Roman law,French law and German law are selected as a typical representative in this paper to discusses the process which they broke the rules"no person shall for the other contracting"and established the institution of the contract for the benefit of third party. And then in Common Law System, the institution of the contract for the benefit of third party has been impeded by the principle of consideration. English law and American law are selected as a typical representative to discusses the process which they established the institution of the contract for the benefit of third party under the guidance of the thought of utilitarianism and pragmatism respectively. At last, it is a comprehensive review of Civil Law System and Common Law System and their similarities and differences which from the development of the institution of the contract for the benefit of third party have been generalized.Chapter III analyses the theoretical foundation of the contract for the benefit of third party, mostly focuses on the justification of the institution. It is the core of this paper. This chapter consists of two parts. The first part discusses the principle of privity of contract, setting up the relation between the principle and contract for the benefit of third party. The second part discusses the justification of the right of third party from the aspect of the will theory of contract. In the first part, the author introduces the basic meaning and significance of the principle of privity of contract, then discusses the reasons to agree or against on breaking the principle of privity of contract in Civil Law System and Common Law System separately. At last, the author point out that the trend of this breaking removes the obstacles of establishing the institution of the contract for the benefit of third party. In the second part, the author researches on the will theory, that individuals will sign a treaty according to their parties, so as to determine their own areas of responsibility. In this part, it applies the will theory to the special structure of the institution of the contract for the benefit of third party, analyses the reflect of the theory between the parties, and between the parties and the third party. Because reasonable institution of the contract for the benefit of third party can ensure the free will of the creditor,the debtor and the third party, the will theory provide the sources of the effect and the justification for the institution.Chapter IV points out the status of the institution of the contract for the benefit of third party and that is the significance of this paper. This chapter consists of two parts as well. The first part discusses the actual status of the institution of the contract for the benefit of third party in the legal system of China. The second part discusses the reconstruction of this institution in the legal system of China. Specifically, the first part makes a survey of general the institution of the contract for the benefit of third party in the Chinese legislation. After clarifying the disputes between the scholars in our country about Article 64 of Contract Law at the present and discussing its interpretation of law,legislative intent and legal system, the paper points out that Article 64 is not the contract for the benefit of the third party . And then through a typical case the paper illustrates the treatment methods in judicial practice under the condition of lack of legislation. Next, the paper sorts out and comments some rules about the contract for the benefit of third party in the special law of China, for example, insurance law, contract law, maritime law and trust law. The second part first discusses the practical necessity of the construction of the institution of the contract for the benefit of third party. And then, it gives us some legislative proposals of reconstruction of the institution of the contract for the benefit of third party. Concretely speaking, the legislative construction includes the choice of layout style and acquisition mode of the right of the third party, and the effect to the creditor,debtor and the third party of the contract for the benefit of third party.The concluding section summarizes the final paper and point out the significance of this writing.