Research, For The Interests Of A Third Party Contract System

The contract is the binding agreement between the specific parties. With the development of the society and economy, the contract relationship is becoming much more complicated, which has led to an awkward situation in practice, i.e. the person who suffered from loss or damage has no right to bring a lawsuit against the defendant on the contract, while the party who has the right to enforce the contract, is unwilling to do so because of no damage. In order to solve the problem, various countries have set up or acknowledged the system of contract for the benefit of third parties in some extent. This system can shorten the procedure of performing, litigate the lawsuits, raise the efficiency, reduce the social cost, and assist the third person. But our country hasn't paid more attention to it so far, although there have been relevant existing systems in some special laws. The author attempts to establish the general principle on the contract for the benefit of third parties by researching comparative law. The author will also make theoretical research combined with cases and practice, based on which she put forward her own points of view about some concrete problems.The first part has proved that this system is an inevitable choice through the history of the contract for the benefit of third parties and legal analysis of it. The doctrine of autonomy of intentions hinders the system as well as plays the role of catalyst during its development.The second part has studied the composition of the contract for the benefit of third parties, including a basic contract and clauses for third party. The former is the cause of the latter, and in principle the latter can't influent the former. And then the author gave five key elements, which distinguish it from other systems of benefit for third persons. The author emphasized the recognition of the third person and the asserting of party's intention.The third part is about the effect of the contract for the benefit of third parties, especially the third party's right.First, the third party's right comes from the contract directly. Third person's right has been vested when he accepted the benefit or he changed his position in reasonable reliance of the contract, of which the promisor can be aware or hadbeen aware, save as may be expressly provided herein to the contrary (the test of enforceability in the U.S.A^ and Great Britain). And the latter can be regarded as an acceptance. The acceptance can also be expressed directly or impliedly.The content of third party's right is very extensive. The third party can also rely on the arbitration clause. And third party's right is not limited in jus in personam. The right can be attached by certain obligations, which can't exceed a certain proportion.The promisee's right includes the right to enforce the contract, which is different from that of the third party, and the right to get compensation for his own loss and the loss suffered by the third party owing to the failure to perform the contract.Promisee's right mainly involves two respects. Firstly, the promisee has defences against the third party. And for the sake of preventing the promisee bearing double responsibility, he can reduce what he had paid.Variation and cancellation of the right conferred on the third party reflects the balance among the third party, the promisor and the promisee. Under this policy, the author put forward the views about the subject to vary or cancel the contract, and the condition to vary or cancel.In the fourth part the author made it clear based on case and the latest relevant legislation that some contracts of carriage goods by sea and some marine insurance contracts can be defined as a contract for the benefit of third parties.Finally, the author analyzed current legislation in our country, and came to a conclusion that our country has not a general principle on the right of third party. For realistic need, it is necessary to establish the system during drafting the Civil Code, which is the basic way to solve the problem.Crystal...