On The Third Person Against The Claims

It has been a controversial hot issue in Civil academia for a long time, since it concludes the creditor's rights into the remedy scope of tort law. Some countries admit the exiting of this system in judicial practice, however,the legal basis for the right of claim is different on a great scale and the resource of the theoretical basis is different either.In the writer's opinion,considering the non-invasion nature of creditor's rights as the theoretical basis of the third party's infringement on creditor's rights can yet be regarded as a concept of resolving problem,nevertheless,constant logic can't adapt to the change of the real world.Perhaps we can return to the tort law itself,and by means of discussing object of tort and the path for its scope of protection in tort law to reveal creditor's rights as the theoretical foundation of the object of violations on rights,from which we can perhaps get some useful inspiration.In the article,the author apply the law research methods such as historical research,comparative analysis and so on.From legislation and judicial practice of most countries,the author make a specific study on the theoretical basis of the third party's infringement on creditor's rights.On this basis,the author devise the constituted requirements of the third party's infringement on creditor's rights and make some relevant legislative propositions.The paper consists of three parts-introduction,text and conclusion.In the part of intorduction,the writer raise questions,simply elucidate the necessity of the system of the third party's infringement on creditor's rights and explain the scope of argument and research methods.The text includes four chapters:ChapterⅠ:A comparative review on the system of the third party's infringement on creditor's rights.Firstly,The article introduces the development of this system in Anglo-American law system,then takes France,Germany,Japanese and Taiwan as examples to introduce its development in Civil law system and makes a conclusion on the development of the system in the end. ChapterⅡ:Elaboration of the theoretical foundation of the system of the third party's infringement on creditor's rights through two perspectives. PerspectiveⅠ,by means of discussing the privity nature of the creditor's rights,pointing out that the non-invasion nature of debt may well be a resolution of including creditor's rights into the scope of relief of violations on rights under traditional theory of tort law;PerspectiveⅡ, Discussion on the protection of rights and interests-the path for creditor's rights becoming the scope of relief,pointing out that we can return to the tort law itself and by means of discussing object of tort and the protection path for scope of protection in tort law to reveal creditor's rights as the theoretical foundation of the object of violations on rights.ChapterⅢ:The constitutive requirements and special exemption reasons of the third party's infringement on creditor's rights,providing a relatively complete structure for the correct application of the liability. Discussion on the five constitutive requirements of the object,the person who violates the rights,subjective intention,the wrongfulness of the conduct,and the third person whose conduct causes damages to the creditor's rights.Then discuss the special exemption of the violation on the creditor's rights.ChapterⅣ:Thouhts of the establishment of the system of the third party's infringement on creditor's rights in China.First of all,starting from our existing legislation and judicial practice,pointing out that China's current law does not explicitly prescribe the system of the third party's infringement on creditor's rights,which is detrimental to the complete protection for the creditor's rights.Then expound the necessity of the establishment of he system of the third party's infringement on creditor's rights,thus advance suggestions.Legislative method should be adopted combining general provisions with special provisions.In special provisions,two elements of deliberate intention and violation of a kind custom should be emphasized particularly.Final:A summary and refinement of the views of the paper.