A Third Party Infringement Claims

Creditor's right is the right to claim of either specific party to demand an action or non-action from the other party, and which in traditional ideas is considered as a relative right meaning that the creditor can only claim for the debtor's performance of debt duties and can only claim to the debtor for damages due to breach of contract when the debtor fails to perform these duties. The traditional ideas exclude creditor's right from the scope of object of tort. However, with the development of the market economy the fact that creditor's right is infringed on by a third person has become commonplace, and the liability of breach of contract cannot provide sufficient protection to creditors alone. Therefore, since the recent decades nations have given up the relativity of creditor's right theory and recognized the system of the third person's infringement on creditor's right through legislation, doctrine and cases instead.Infringement upon creditor's right refers to the act of a person, which obstructs the realization of creditor's right. For this there are two different understandings: one is the debtor's infringement upon creditor's right; the other is infringement of the third person upon creditor's right. In the thesis is discussed the latter one.This paper begins with the origin of the principle of relativity of contract, by putting forward the notion of the inviolability of creditor's right try to justify the necessity and rationality of the system of infringement of the third person upon creditor's right, and proposes the stand our nation should adopt, to realize the biggest function of that system.This paper is divided into four parts:Part I, principle of relativity of debt. This part examines the origin of this principle and its modern resurgence, introducing the birth and modern development and the value of this principle, which is aimed to establish a foundation for breaking up the limits of the principle of the relativity of debt and setting up the system of infringement of the third person uponcreditor's right.Part II, basic theory on the system of infringement of the third person upon creditor's right. This part analyses the inviolability and value of existence of the system of infringement of the third person upon creditor's right, introduces the status quo of the system of infringement upon creditor's right of several nations and districts such as the civil families like French, German, Taiwan and the common law families after their breaking up in theory of the relativity of debt, and our understanding of infringement of creditor's right. It also protests for the meaningfulness and great value of the system of infringement of the third person upon creditor's right as a aiding system to the system of liability for breach of contract, to set the foundation for construction of China's system of infringement of the third person upon creditor's right.Part III, constitutive requirements of infringement of the third person upon creditor's right. With reference to all kinds of opinions and doctrines in and out of China, the author concludes three important constitutive requirements of infringement of the third person upon the creditor's right: act of infringement, subjective malice, harmful consequences, and makes detailed analysis and explanation of elements of each constitutive requirement.Part IV, liability assumption and grounds for exemption. This part first divides the circumstances liability assumption after infringement of the third person upon creditor's right into two categories: several liability of the third person and joint liability, then makes analysis of them respectively, and finally analyses the three grounds for exemption within the system of infringement of the third person upon creditor's right, defining the exemptions of establishment of infringement of the third person upon the creditor's right.