| Under modern market economic condition, development trade safety also becomes the key of economic development. By this, how to design and select legal system in order to solve complex dispute , is just to protect trade safety efficiently, obviously is establishing and perfecting the Chinese law circle of the legal system of socialist market economy the problem that place must think deeply. Have no right to punish , embody the complexity of social life typically with the guarantee of trade safety problem. For the main part that it is concerned with , include true right person , have no right to punish person and the person of 3th; For its legal system that is concerned with , include legal behavior system, the system of creditor's rights and thing right system. In which the benefit dispute produced major concentration in true right popular support the person of 3th, and the benefit of the person of 3th usually represents trade safety. So, how to is just to protect the person benefit of 3th become the facus of legal solicitude. Therefore, continent law is that major country has designed its corresponding legal system , Chinese contract law also aim at to have no right punishment have made stipulation. However these different legal system actually whether practical realization guarantee the purpose of trade safety? The author thinks that will study to have no right to punish the problem of behavior , must have no right on the prerequisite foundation of selecting surely thing right change pattern according to the spiritual deep analysis of modern civil law to punish the essential and inner feature of behavior , so determines that handle to have no right to punish the legal rule of behavior.This paper major from some following aspects come exposition:The first The burden behavior claimed ( Verflichtungsgeschaft) denote the behavior that sets duty on right, in which meaning express being only the meaning that sets the debt of creditor's rights , its nature is the behavior of creditor's rights. The punishment behavior claimed ( Verfugungsgeschaft ) denote m order to occur the behavior with right change of purpose. The second, have no right feature and the concept of punishment: Have no right to punish behavior , denote the punishment behavior been that person marks without punishment right with own name for the right of other person.. The third, the comparisonwith related concept.Second part have no right the legislative regular analysis a meaning doctrine pattern of creditor's rights of punishment under have no right punishment: Denote to depend on involved party only meaning show , need not go on public show , occur thing right change. Public show confrontation doctrine pattern under have no right punishment: Denote to depend on involved party only meaning show , occur thing right change, public show only oppose effectiveness, instead of thing right change come into effect, the pattern analysis with thing right behavior theory as foundation: With the German ceremony of civil law and the Taiwanese area civil law of our country for the thing right meaning doctrine of representative, with thing right behavior theory for foundation have founded to have no right the trade safety of punishment protect mechanism.The part of 3th for our country concerning have no right to punish effectiveness the comment of major theory Xi one and our country concerning have no right to punish major theory of effectiveness:In a word, I think that can do following understanding for the Sub_clause 51 of " contract law " , punish the property of other person without punishment right person, if do not go through right person posthumously confer or do not have punishment right person conclude contract after do not get punishment right, this behavior is invalid , but right person refuse to posthumously confer must not remove goodwill get system suitable, must not oppose the goodwill person of 3th. In have no right the condition of punishment take off, if go through right person posthumously confer or do not have punishment right... |
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