The Third Person Against The Claims Of Tort Liability Study

Debts, which is a typical claim for certain acts, exist between the specific parties. Traditional civil law adhere to theory of relativity debt, and it does not recognize the third person should bear tort responsibility. It claims that debtor should bear responsibility for breach of contract. But with the development of society, the world's major countries and regions have endorsed the adoption that the third person's tort liability in legislation or cases. This article is based on this recognition, by analyzing the rational existence of third person encroach on creditor's rights, using comparative analysis, and then brought forward the concrete ideas to establish this system in China.The paper can be divided into four parts:Firstly, the basic theory of the third person encroach on creditor's rights. Based on the recognition of an infringement claim against a third party, the author introduced the concept of encroach on creditor's rights, and recalled the history of this system in Western society. Then the author analyzed three theoretical basis of this system. Frist, a critical thinking of relativity principle, this principle applies only to the certain parties,but for the third person, the tort responsibility is unvioable. Second, the nature of debts is a property right. They have the inviolability as same as the absolute rights. Third, the principle of freedom of contract also called for debt shall not be violated. And then, the author analysed the real value of this system. It is also of great significance to our country.Secondly, comparative study. This part mainly compared the encroach on creditor's rights system of world's major countries and regions. For example, common law countries is in the delegation of England and United States. England is the first country which built this system. Civil law countries and regions is in the delegition of France, Germany, Japan and Taiwan of China. On the base of comparative analysis of other countries and regions'legislation, the author reviewed legislation status of our country, and believed that our country's existing law does not against the system of a direct provision. And the "Tort Liability Act", which was published recently, not explicitly exclude debtor's rights. Thirdly, the constitutive requirements and accountability of the third person encroach on the creditor'rights. The author believed that it meets the general tort elements, in addition to including the elements of special form. There are five main aspects:the existence of valid claims is the premise; the subjece is primarily a third person, but does not preclude the debtor when he has a malicious collusion with the third person; subjectively, there must be a deliberate infringement and definite purpose; objectively, implement the illegal violations; caused damage consequences to the creditor. Only it meets the above elements can constitute infringement claims. The author then summed up the exemptions of the third person encroach on creditor's rights. It contained legitimate reasons, rational competition and perform their duties.Fourthly, suggestion on legislation to our country. On the basis of all above analytical demonstration, the author believed that the system of the third person encroach on creditor's rights have the theoretical basis and practical significance, our country should also establish it. The author then put forward specific ideas to establish this system.