Study On The System Of The Legal Remedy To The Third Party Infringing Obligatory Rights

With the promulgation of'Tort Law of the People's Republic of China', the system of the third party infringing obligatory rights has been a focus of concern in the civil law scholars. Unfortunately, although the civil law scholars strongly advocate that the Tort Law should involve the system of the third party infringing obligatory rights, the law system still fails to achieve the ultimate. This is because the system of the third party infringing obligatory rights encountered in the t traditional theory. The traditional theorists persist to absolute division of property and creditor, so, it is correct to maintain cautious attitude before the confliction of the relativity of obligation and the obligatory rights impossibility to be infringed. However, in judicial practice, the forms of the third party infringing obligation rights are varied. The lack of legal remedies cause there is a "vacuum" in the obligatory relationship. Therefore, the study of the system of the legal remedy to the third party infringing obligatory rights has important theoretical and practical significance. Although the system of the third party infringing obligatory rights has miss the"first bus"of the Tort Law, with the deepening of theoretical research, it could be considered again when the time comes and by the form of judicial interpretation. The Tort Law system could be improved gradually.Without the introduction part and the conclusion part, this thesis is divided into five chapters:The First Chapter: the General Theory of the Third Party Infringing Obligatory Rights. This section describes the theoretical background: Firstly, the conception is defined; Secondly, analysis of the constituent elements. As the system of the third party infringing obligatory rights protects the obligatory rights, not only protects the creditor's rights, but also protects the debtor's rights. Thirdly, in order to clarify the typical behavior, the direct and indirect infringement has been analyst with types. Finally, through the common law and civil law system established comparative law analysis, came to the conclusions.The Second Chapter: the Theoretical Basis of the System of the Legal Remedy to the Third Party Infringing Obligatory Rights. This section is the key part of this paper, and set up to build a theoretical framework. The system of the third party infringing obligatory rights is not subversion to the divided of the traditional theory with the property and debts, but a supplementary to the dual structure of traditional logic and rationality. Recognition the obligatory rights impossibility to be violated, is respect to rights. By analyzing the anspruchsgrundlage of Taiwan, the purpose is to find the anspruchsgrundlage with the legal framework in inland of China.The Third Chapter: the Responsibility of the Third Party Infringing Obligatory Rights. This section is the core to build the legal remedy system. Currently, there are much research is for how to response the obligation. But the legal remedy system is still not perfect. The debtors could also get some interests from performance of their obligations. If the relationship of obligatory rights is infringed, and the debtors make any fault, it is unfair that there is any legal remedy.The Fourth Chapter: the Legislation and Problems of China.ve problems. Lack of necessary legislation and practice are in sharp conflict. It is necessary to build the system of the legal remedy in the modern social and economic conditions. But the traditional civil law has many loopholes, the Tort Law is a supplement of the traditional civil legal remedy.The Fifth Chapter: the Strategy of the Improvement of the Legal Remedy System. In the choice of the legislative model, it is proposed that the legal remedy system of the third party infringing obligatory rights should be write-in the Tort Law, and should adopt general and special statements. In the choice of the remedy channel, it is proposed to take private protection and public protection. Ultimately, through the form of the legal provision, this thesis put forward a specific proposal for design of the system.