On Behalf Of The Right Elements And Objects

The generation of position power system is the brand-new legal regime of the law of contract stipulation, its establishment put our country civil law creditor's rights safeguard system theoretically further to consummate .It play the positive role in the optimized transaction environment aspect and solving the triangle debt in practice. But our country law of contract only used a 73rd stature document too broad stipulation, and had certain conflicts with the traditional generation of position power theory, caused this system the different department, the different court different to operate to this article understanding not unified, in the practical application. How understood and the execute the generation of position power system, is worth the legal colleague carrying on the thorough necessity the discussion. Because the generation of position power lawsuit is the new form lawsuit, the legal article stipulation is extremely limited, therefore in the trial practice exercises the important document understanding to the concrete case also to different from others, that cause the trial result not to be unified, and affect the judicial solemnity and the authority.This article includes three parts, about 20000 characters.The first part analyzes the concept, the social root, the nature and the social value which the creditor generation of position power system depend. The generation of position power is the debtor is negligent in exercises it to create the harm to the third human of due creditor's rights to the creditor, in order to guarantee the creditor's rights in the realization, the creditor can by own name to the people's court prosecution or to the arbitration facilities application arbitration, a generation of position exercises the debtor to enjoy to the third person must specially with the money to pay the content of the creditor's rights, also the consequence direct ownership gives an own right; The social root is the commodity economy rapid development; The generation of position power nature is attaches the controlled condition attached in the creditor's rights one legal right, the concurrently authority nature and forms the power nature the special right type, is in one kind of substantive law right; The generation of position power social value mainly manifests in the proper attention to both system fairly with the social efficiency, gives dual attention to the creditor benefit the protection and the debtor meaning free respect, proper attention to both entity right expanding and the legal procedure simplification.The second part emphasis on the generation of position power tradition significance constitution important document, as well as the generation of position power correlation system in our country's development condition, analyzes our country generation of position power emphatically the characteristic, the institutional innovation and the deficiency, has the dispute to in the theorists and the trial practice the partial important documents to carry on the discussion. "Law of contract Explanation" exercised the important document to the generation of position power to make the too general stipulation, therefore in the trial practice exercised the important document understanding to the concrete case also to differ from, caused the trial result not to be unified, has affected the judicial solemnity and the authority. This part in view of creditor's rights validity; The debtor is negligent in exercising its due creditor's rights, creates the harm to the creditor; The creditor creditor's rights and debtor's creditor's rights all time and so on three dispute big important documents have carried on the discussion.The Third part discuss the generation of position power object. It elaborated the generation of position power object scope of French, Japanese, our country Taiwan area , as well as our country's generation of position power object scope, the characteristic, and put out our country generation of position power the object has been clear about as if specifically in the form, but in essence actually, a generation of position exercises the right is extremely widespread, the expanded generation of position power object scope, may safeguard the creditor's rights extremely effectively, but expands the generation of position power excessively the applicable scope will attack the law of contract the principle of relativity, threatens each kind of law of contract system which based on the contract principle of relativity. Besides, limit generation of position power applicable scope will impact the civil law other system. Therefore expand its scope is not suitably. So our country generation of position power system is to the creditor's rights safeguard system, its object must limit to the debtor to the inferior debtor's right, but all debtor's right may a generation of position exercise by no means. Finally the author unifies the traditional civil law system, to analyzes the big generation of position power object has carried on the discussion.This article emphasizes on preservision of the creditor's rights , take our country's judicial practice, utilization methods and so on history inspection, value analysis, legal analysis, comparison research, apply theory to reality, to the generation of position power concept, has the social root, the nature, the social value, the constitution important document, exercises the object and so on the related question to carry on the thorough discussion, and proposed further consummates our country creditor generation of position power system the legislation to suggest, in order to built up the reasonable creditor generation of position power theory.