| It is a long-term issue debated by the two legal systems that whether it is a tort when a third party infringe upon creditor's right since it relates to the understanding of the nature of creditor's right and the system of tort.Traditional civil law hold that debt has no force to against a third party,a third party don't have obligation to obligee,accordingly there is not able to infringe upon creditor's right.However,the contractual theories of the two legal systems were carefully designed by jurists based on the assumption,and defects existed from the origin of contractual theories.With complication of the capitalist economic life,it is very common that a third party infringe upon creditor's right.In Order to safeguard the order of transactions,the two legal systems have established the system of liability for a third person infringe upon creditor's right through cases.While China's current laws haven't established this system,and contract law actually denied the theory of inviolability of creditor's right.But creditor's right after all is the rights which are protected by law,if it is not protected while let a third party trespass it,the order of transactions will be difficult to maintain.Therefore,the voice of establishing this system is rising both in academic and practical circles.But when the scholars analyze theoretically about the system of liability for a third person infringe upon creditor's right,most of them believe that inviolability of creditor's right originated from the external forces of creditor's right.The author think that in terms of the nature of creditor's right and tort law, inviolability of creditor's right didn't originate from the external forces.Some scholars believe that establish the tort system of creditor's right and make the creditor's right as the object of tort,it doesn't meet the current theories of Civil law,but also incompatible with the current system of civil law,in addition,China's current laws have established no-fault principle of liability for breach of contract by obligor which gives obligee fully protected, generally,there is no need to establish the tort system of creditor's right.The author believe that this view is biased,therefore,on the basis of fully collection of relevant information,starting from the external cases and doctrine,investigating the system of liability for a third person infringe upon creditor's right that social economic life background can be established, analyzing the evolution of the nature of creditor's right,on the basis of dissection of the relationship between the principle of relativity and the theories of inviolability of creditor's right,discussing the circumstances and conditions of application of the system under the relief system of current civil law,expecting achieve some certain effects,discussing with my seniors and peers,improving the relief system of china's private law.In particular,this paper is divided into six parts to systematically demonstrate the necessity of establishing the system of liability for a third person infringe upon creditor's right.Partâ… ,bring forward the problem.Since mainland current laws haven't established the system of liability for a third person infringe upon creditor's right,it is controversial that whether the no-fault principle of obligor's liability for breach of contract on contact law gives the obligee fully protected.The Author introduce two lawsuits in the case,after preliminary analysis, concluded that relief system of private law provided by China's current laws is not able to protect obligee fully,which means that defects maintain exist in the system.However,when the majority of the people comment on the system of liability for a third person infringe upon creditor's right,while advocating to admit this system,but it is a complete misunderstanding in the theories,and reasons of demonstration are difficult to justify.Therefore,it is necessary to get further discussion on this issue.Partâ…¡,the theories of inviolability of creditor's right- external cases and doctrines.On the basis of fully analysis of the information collected,from the common law and civil law legal system respectively,through the comparative analysis of the specific cases and doctrines in the United States and Britain, France,Germany and China's Taiwan region which involving in a third party infringe upon creditor's right and found that while the major countries and regions of the Two legal system were almost established the system by the cases,and generally considering remedy the defects of relief system of private law,but the specific reasons are not entirely the same.This can pave the way for the partâ…¢,discussing the relationship between inviolability and relativity of creditor's right.Partâ…¢,relativity of creditor's right is not the barricade of inviolability of creditor's right.There have been arguments between affirmation and denial about the inviolability of creditor's right.People in negative viewpoint hold that admit the inviolability of creditor's right will wave the framework of "property-creditor's right" which holding the theories of system of civil law; while people in affirmative viewpoint hold that they are the rights protected by law,property has the nature of inviolability,creditor's right is the same.The focus of arguments lies in the different understanding about the nature of creditor's right.This part starting from investigating the evolution of the nature of creditor's right,criticising the viewpoint that inviolability of creditor's right originate from the external forces,and point out that the logical starting point is different between liability for breach of contract and liability for infringement,relativity and inviolability of creditor's right respectively belong to liability for breach of contract and liability for infringement, conclude that inviolability of creditor's right is not arise from the external forces of creditor's right and the principle of relativity is not the barricade of the theory of inviolability of creditor's right.Finally,point out the purpose of the system of liability for a third party infringe upon creditor's right is to safeguard the safety and order of transactions.Partâ…£,defects exist in the system of relief of creditor's right given by china's current laws.For the viewpoint that "China's current laws have established no-fault principle of liability for breach of contract by obligor which gives obligee fully protected,there is no need to establish the tort system of creditor's right",through analysing the problems exist in judicial practice,and demonstrating the system of contract liability which give protection to the obligee is not comprehensive,and conclude that defects exist in China's current system of judicial relief,point out the necessity of establishing the system of liability for a third party infringe upon creditor's right.Partâ…¤,investigating the circumstances and conditions of application of a third party infringe upon creditor's right under the current relief system of private law.Since creditor's right don't have the nature of typical social publicity,not able to be known by a third party,if apply to the components of general tort law,it would lead to being blamed by a third party,excessively restrict people's free activities.Therefore,the conditions of application of the system of liability for a third party infringe upon creditor's right should be strict than general tort.Mainly embodied in the recognition of the fault of people,analysing the two views about recognition of fault of creditor's right and tort,the author support that make "knowingly" the existence of other's creditor's right but damage it as the standards of fault.However,the conditions of a third party infringe upon creditor's right are different,it is difficult to find the general rule of liability for infringement.And introduce this system will cause crash or overlap with part of private relief system which have been established,therefore,it should limit the circumstances and conditions of application of the system under the investigation of current relief system of private laws.Partâ…¥,the conclusion.This part simply conclude the view of the whole text.consider that creditor's right after all is the right protected by law. Creditor's right and property are not able to be infringed.Inviolability of creditor's right didn't originate from the external forces,the principle of relativity of creditor's right is also not the barricade of the theories of inviolability of creditor's right.Defects exist in the relief system of current private laws.Creditor's right haven't been fully protected,in order to safeguard the security of transactions,should establish the system of liability for a third party infringe upon creditor's right,but creditor's right don't have the nature of typical social publicity,need to strictly limit the circumstances and conditions of application,don't hinder the development of free competition.However,the conditions of a third party infringe upon creditor's right are different,it is difficult to find the general rule of liability for infringement,we should take Britain and the United States as a reference, in coordination with relief system of current private laws and through cases, compare and classify cases,gradually establish a complete judicial system to regulate the application of the system of liability for a third party infringe upon creditor's right... |
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