Talking About The Third Party Infringing Creditor's Rights System

The system of infringement of obligatory right by third party has developed in the end of 19th century and the beginning of 20th century. It is the result of combination of contract law and tort law for the benefit of creditor. It widens the interests score of protection by the tort law and strengthens the civil protection for the benefit of creditor. But until now, no definite law directly regulated the act of infringement by third party in any counter which leaves the broad room to study this theory.In continental law system, the conception of infringement of obligatory right by third party is called "infringement of obligatory right" but called "intervention of performing contract" in common law system. In our academic article it is called "infringement of obligatory right by third party". In spite of the different names, its basic meaning has little difference. Its general definition is the act of infringement that the third party out of range of the obligatory relation aims to infringe the obligatory right of creditor and causes the damage. Comparing to the common tort, it has two following characters: firstly, the subject is the third party but not the creditor and debtor. Secondly, the object is as the relative obligatory right. For the sake of the clear recognition the system the third part of chapter one, the author compares the infringement of obligatory right by third party with the breach of contract caused by third party, seeks the subtle difference between the systems, and makes out what the system of infringement of obligatory right by third party.In the chapter Two, the author analyses two bases why the system was established. One is the breakthrough of the relativity of obligation. Before this period, the social condition determined the relativity of obligation, and the relativity of obligation expelled the infringement of obligatory right by third party. With the development of economic social consciousness and law thoughts, in the end Of 19th century and the beginning of 20th century, the theory was out of the relativity of obligation, and the system of infringement of obligatory right by third party was established.In the Jus Romanum, the obligatory relation had strict personal boundary. The creditor should only ask the specific debtor for certain behavior or not, but he should not ask the third party for the obligation but the debtor. In addition, the obligatory performance had severepersonal punishment. If the debtor couldn't perform the obligation, the creditor could sell the debtor as a slave to realize his obligation. As long as the relativity of obligation was strictly obeyed f the obligatory right could be protected So the relativity of obligation was reasonable at that time. And so did the federal society.In modern time, with the development of productivity, the product relationship of capitalism has been established, the personal right and liberation was valued, which caused great changes in all the fields. In the field of obligation and contract law, if the third party intentionally infringed the obligatory right, the creditor couldn't claim the rights to the third party because of the effect of obligation was strictly bound to the creditor and the debtor, he only could bring an action to debtor for the breach of contract.In the end of 19th century and the beginning of 20th century, the capitalism was from free competition to monopoly stage, and great changes took place in all fields of the society. The relativity of obligation was broken through, and The system of infringement of obligatory right by third party which had established the relativity of obligation was from the logic deduction of nature of obligation, and it restricted the effect if obligation was between the mutual party of the obligation. If the third party intentionally infringes the obligatory rights, the creditor could only claim the obligation of breach of contract to debtor but not the third party, which embodies the stable value of law and formal justice. But in the special period, if the relativity of obligation was strictly obeyed, the interests of creditor would be impaired badly and the social economic was out of order. In this context, the judge made new interpretation of the law. The creditor could bring an action of tort to third party for the benefit of creditor by means of broadening the concept But in the common Law system, the new interpretation of the relativity of obligation made the creditor could bring an action of tort to the third party who intentionally infringed the obligatory right, hi the end the interests of creditor was protected.In the chapter Three, the author tries to analyze the necessity of establishment of system of infringing the obligatory right by third party from the relation of obligatory right and the tort. From the Jus Romanum to the modern civil law, the obligatory right was the means of obtaining property. With the development of economic, the obligatory right became the aim but not the means. The creditor could realize his obligatory right by the means ofdebtor's performance, and he had the anticipating interests and the existing economical benefits. If the existing economical benefits was infringed by the third party, the means of the obligation of breach of contract was not enough. It need to introduce the system of obligation of tort so that the interests of creditor can escape from being impaired. Also, the obligatory right gives right to the creditor so that he can expel the infringement or claim when he faces the illegal infringement, and the object of tort is the obligatory rights the creditor owes which can resist the third party. Furthermore, when the obligatory right is infringed by third party and causes damage, if the creditor only can bring an action of tort to the debtor but not the third party, it probably occurs when the debtor has scope the party of breach who can afford. So the no liquidity or the damage is out of the permitted action of tort that the creditor brings to the third party is obviously beneficial to the protection of the interests of creditor.In the chapter Four the infringement of obligatory right by third party is regarded as tort, which should contain the following elements: the subject of tort must be the third party but not the parties of obligation, the third party intentionally infringes the obligatory right the object is obligatory right, the third party behaves illegally, the third party's illegal action brings about the damage , and the illegal action and the damage have causal relationship. Secondly, the main civil obligation of the infringement is to stop the infringement, give back the property and make compensation for the loss. Thirdly, the third party can be free from the civil obligation on grounds of opposition such as legitimate competition, earnest advice perform the duty and so on.In the chapter Five, the author intents to find the realistic significance of infringing the obligatory by third party from the development of obligatory right and tort law, and concludes that the system should be regulated according to the realistic necessity in the process of legislation concerning the problems in juridical practice. As to the future legislative construction of the infringement of obligatory fight by third party, the author puts forward the following imagination: firstly, the tort law should be individually listed in the future civil code, the first article is the general article of act of tort and the infringement of obligatory right by third party can be the basic article in it.Academic articles usually have common recognition on this problem Secondly, it doesn't have common recognition about the concrete act of tort. The author thinks that theclassification of act of tort are infringement of the personal right status fight in veto on property interest, obligatory right and right of possess according to the object of act of tort.The subject of the system can be found in this regulation. Third by the article of action of tort should include the following context: the subject of infringing the obligatory right is the third party, the subject facet is on the purpose and the object of tort is all kinds of obligatory rights. The author suggests the article should be revised as follows: the third party who knows the obligatory relation of the parties, intentionally intervenes the debtor's performance, and infringes the creditors obligatory right, should take the civil obligation of tort.