Study Of A Third Party Infringement Claims System

The creditor's right is considerer as the object of tort in the third party's infringement on the creditor's right, which is also the focus of is controversy in civil theory. The phenomenon of the third party's infringement on the creditor's right is not occasional in China's judicial practice. But the existing legislation does not mention it. Therefore, study on it has an important theoretical and practical significance.In this paper, the authors use a historical research, comparative law analysis methods. First of all, after a brief introduction of the legislation of the third party's infringement on the creditor's right in common law and civil law countries, the paper discuss the theoretical foundation of the system. And then it discussed the elements and the civil liability of the system. Finally, the paper describes existing legislation of China. Of course, the author gives a few advices on it. This paper is divided into five parts as a whole besides the preface and conclusion.The third party's infringement on the creditor's right system is outlined in part one. It emergenced in the past century, and it has a history of more than 100 years in Anglo-American law system. Anglo-American law system does not have the concept of "creditor's right ".Scholars from different countries have different opinions on the concept of the third party's infringement on the creditor's right. Therefore, the third party's infringement on the creditor's right is not mentioned in law. And it is also not mentioned in laws of France and Germany. But the majority of of the scholars in China have their own opinions on it. The author believes that the third party's infringement on the creditor's right can be summarized as: the third party's conducts on intentional or negligence which achieves the implementation of prejudice to the interests of creditors.The theoretical foundation of the third party's infringement on the creditor's right is analyzed in part two. The theory of relationship of debt has the origin of the litigation theory in Roman law. And the civil law countries inherited this principle on the impact of natural law. Anglo-American law system does not have the concept of "creditor's right". So the theory of debt in civil law countries embodied in the main contract in the common law countries, and was called "the relationship of contract". Professor Wangzejian mentions the relationship of contract as follows: "debt is one kind legal relationship which means that particular men can ask specific request payment from each other. Only creditor can ask specific request payment to the debtor, which is called the theory of relativity of creditor's right." Either from the origin of the theory of relativity of creditor's right or from the content of it, the theory of relativity of creditor's right can not prevent the creditor's right to be the object of the infringement. After inspecting the nature of the rights, exclusivity of property, legal relations and the object of tort law, we can see that the inviolability of creditor's right leads to the creditor's right to be the object of the infringement.The elements of the third party's infringement on the creditor's right system are described in part three. Scholars in China and the district of Taiwan have different opinions about the composition of the third party's infringement on the creditor's right. The author believes it have five points: there are legal creditor's right; the third person did it; the third person has committed an offence against the creditor's right; the third has a fault; third person's acts cause damage to the creditors. The specific circumstances of the third party's infringement on the creditor's right are complex and complicated. Scholars have different classification under different standards. In my opinion, we can divide it into two categories: in the first condition, the third party infringes the creditor's right with the debtor; in the other condition, the third party infringes the creditor's right without the debtor. The first condition can also be divided it into two categories: the third party's infringement the creditor's right on prejudice with debtors; the third party's infringement the creditor's right, besides luring the debtor not to act or to act improperly. The second condition can also be divided it into two categories: act on the creditor; act on the debtor; act on the debt itself; act on the other people. About the subjective elements, the majority of scholars in China believe that the third party should be emotional but not negligent. I think that both are all right. Of course, generally speaking, negligence could lead to the third party's infringement on the creditor's right. But we could not say that the third party's infringement on the creditor's right contains negligence.The civil liability of the third party's infringement on the creditor's right is discussed in part four. The third party who. infringes the creditor's right should bear civil liability, which mainly means he should compensate for the loss. It is the most important and fundamental civil liability. In addition, the third party can bear the responsibility of damages alone or with debtors. The third party's liability compensates and the debtor's liability for breach of contract constitutes Gesamtschuld except the debtor and the third party prejudicing the debt together emotionally. Or they constitute a competing responsibility. The responsibility of the third party's infringement on the creditor's right and the responsibility of unjust enrichment also constitute a competing responsibility.The last part is about several advices on the improvement of the existing legislation about the third party's infringement on the creditor's right system. The third party's infringement on the creditor's right is not mentioned in China's legislation, but the base of it can be seen in the "constitution" and "General Principles of Civil Law," "contract law" everywhere. The legislation does not delay the judicial progress about the third party's infringement on the creditor's right. Although it has not been clearly recognized by the law, it has been admitted by the judicial interpretation and the administration of justice. The system of the third party's infringement on the creditor's right has a profound practical significance in China .Tort law is very likely in the future to be a separate provision in the Civil Code, so the author suggested that the systems of the third party's infringement on the creditor's right could be under the provisions of this Part.