On Inviolability Of Creditor 's Rights

Relativity of creditor’s right is the basic of the private law system. Based on this principle, the creditor’s rights shall be excluded from the scope of the protection of the tort law. This article starts with the analysis of the characteristics of the creditor’s rights as the relative right, then clarifies the relationship between the creditor’s rights and the relativity of creditor’s rights. The article focus on the analysis of the constituent elements of direct and indirect infringement of creditor’s rights, identification of subjective elements and behavior and illegal resistance but cause.PartⅠ,introduction. Because our country has not established the tort liability law protection system for creditor’s rights at present, this article preliminary analyses the theoretical controversy on the non infringement of creditor’s rights through the introduction of a case. It has got the recognition of many countries and scholars that third people can’t be unlawful infringe creditor’s rights, but the theoretical basis for the non infringement of creditor’s rights is controversial. The current view is difficult to rationalize the logic of the problem. Therefore, this paper argues that the theoretical basis of the theory of creditor’s rights need further discussion.Part Ⅱ, external cases and doctrines. This part analyzes the legislation and legal precedent in the field of infringement of creditor’s rights in Britain and the United States. By comparing the different regulation modes of the two legal systems, this part emphatically explains the different protection methods of creditor’s rights before and after establishing the system of tort law protection of creditor’s rights. On the basis of showing the differences between countries, it provides reference for our country to establish the system of tort law protection of creditor’s rights.Part Ⅲ, relativity of creditor’s right is not the barricade of inviolability of creditor’s right. This part mainly explains that the nature of right is the theoretical basis of the non infringement of creditor’s rights. According to the relativity of the concept of law, the classification and definition of the legal concept should be in a specific contrast environment. From the perspective of rights, any right is not affected by the illegal infringement of third people. The non-infringement of the creditor’s rights and the relativity of creditor’s rights are the characteristics of the different levels of the division of rights. The two are not in conflict.Part Ⅳ, the types and elements of the direct infringement of creditor’s rights are discussed in general. Comparing with the regulation mode of the infringement of creditor’s rights in the 826 article of German Civil Code, this part discusses whether there is a conflict between the two in the negligence infringement of the creditor’s right to constitute a tort, or under the mode of direct infringement of creditor’s rights, negligence tort can be solved through other systems.Part Ⅴ, analysis on the constitutive elements of the indirect infringement of creditor’s rights. This part analyzes on two aspects of subjective and behavioral elements. In terms of subjective elements, this article will determine the standard of subjective intention through the analysis of Cognition factors and will factors. In terms of tort, through the analysis of the behavior violating the good custom, this article will determine that the behavior is illegal. Then, this part distinguishes between legitimate competitive behavior and illegal infringement of creditor’s rights and analyzes of specific identification standards and the cause of resistance.Part Ⅵ, the conclusion. This Part simply conclude the view of the whole text. Creditor’s right and property are not able to be infringed. The reason is that the creditor’s right is one kind of the right and non-infringement is the embodiment of the essence of rights. The non infringement of the creditor’s rights is not the external force of the creditor’s rights and the relativity of creditor’s right is not an obstacle to the non-infringement of creditor’s rights. The act of infringing upon creditor’s rights does not need to be divided into direct infringement and indirect infringement. It is more reasonable that applies German civil code regulation model which intentionally in violation of the good custom of the method to damage to others is regarded as a constitutive element. The indirect infringement of creditor’s rights should have subjective intention, illegal behavior, damage, causality and the cause of non resistance.