Third Person Against The Claims Application Of The Law Discussed

The principle of infringement upon creditor's right by the third people was established by the common law families first. Then with the mixture between the common law and the civil law families, as well as development of our society, the principle mentioned above was recognized by the civil law families too. The relativity of the credit right and the absoluteness of the material right are regarded as a basic rule in traditional civil law. Upon it, the principle of infringement upon creditor's right try to make some development, which means, this principle want to put the inviolability as well as the relativity on the creditor's right. So the principle protects creditor's right much thoroughly to some extent. More importantly, it also makes the third people who encroach on creditor's right pay for his malice, then the order of competition in the market economy stands up. As to the phrase of our social and economic development, there is necessity and rationality for the establishment of the principle of infringement upon creditor's right too. For our legislation, articles of special law about this principle becomes more and more, while in judicial practice, judges still can't find the exact article according to our basic civil law for their judgment. So it's time to adopt the principle right now.The author has utilized the way of comparison research, historical analysis as well as legal explanation as techniques of legal science research in this paper. Based on our legislation and judicial practice, the author analyze the theoretical basis and constitutive requirement for infringement upon creditor's right by the third people, through historical examination. The text is divided into five parts:The first part, brief account of the principle of infringement upon creditor's right. This part mainly introduces some articles in our special law which give expression of the principle in legislation. Then the author recommend some definitions of the principle from famous scholars, in order to give us clear impression about the principle.The second part, constitutive requirement of the principle of infringement upon creditor's right. The constitutive requirement of the principle is a little special and more strict due to the relativity and unpublicized of the credit right. The constitutive requirement includes: the third person out of the debt, act of infringement, subjective malice, harmful consequences, cause and effect relationship. Then make detailed analysis and explanation of elements of each constitutive requirement. The most important is credit right should be lawful and effective.The third part, the principle of the infringement upon creditor's right on comparative law. This part introduces the status quo of the principle of infringement upon creditor's right of several nations and districts through the perspective of the common law and the civil law families. On the basis of cases and theories in these nations and districts, the author try to describe the route of development of the principle more clearly for the benefit of our judicial practice.The fourth part, theoretical basis of the principle of infringement upon creditor's right. In this part the author examines the origin of relativity and absoluteness theories on a historical angle, and point out the necessity of establishment of the principle. Since the values turns from individualism to socialism, the principle should be adopted accordingly. Furthermore, credit right represents a kind of expected economic interest in nature.The fifth part, discussion on development trend of the principle of infringement upon creditor's right in our country. There are many scholars in our country presenting the articles about this principle in their suggestion draft of civil code . With reference to our judicial practice, it's always hard for judges to choose a right article for their judgment due to lack of the principle of infringement upon creditor's right in basic civil law. As far as author's concerned, before carrying out of civil code, judges could apply the principle aimed at honest and credit to make their decision.