Study On The Accountability Of The Third Party Infringement On The Creditor’s Right

Since Rome law, the traditional theory of civil law treats absolute right and relative right as the basis to distinguish tort ability and breach of contract. AS creditor’s right is relative, to secure its relativity, the absolute right could not be the object of tort. But with the economic activity being more and more diverse and prosperous, civil relation is increasingly complex, and the phenomenon of interfering contract relation by third people becomes relatively common. According to the "contract law" provisions, in the third case of malicious infringement of creditor’s rights, the creditor is not entitled to ask third people to bear the liability for breach of contract. As a result, the creditor’s rights can’t get well made up. This’ s clearly contrary to the fair idea of civil law. However, third interference with the contract system has been established in the legislative and judicial practice abroad. Therefore, we need to learn from the experience of other countries, combining China’s specific national conditions, to establish system of third party infringement claims of China, in order to better protect the legitimate rights and interests of creditors, as well as the normal competition order of economic activities. However, whether the behavior of infringing creditor’s rights can become a way of tort or infringement of property rights, there is great controversy at home and abroad. But in recent years, scholars have gradually reached a consensus, to better protect the interests of creditors, the inviolability of creditor’s right needs approval, and behavior of infringing creditor’s rights can become the object of tort. In our real life, the third party’s infringement on creditor’s rights occurs frequently, and before the "tort law" came into introduction many relevant scholars proposed to institutionalize the behavior of infringing creditor’s rights by third party, but ultimately the proposal failed. So, in our country, the issue of third party’s infringing creditor’s rights has been in lack of law, and this kind of problem is also quite confusing in judicial practice. Considering this status, in order to provide a legal basis for the protection of the legitimate rights and interests of creditors, as well as to regulate the application of law in our country, the article points out that the institution about third party’s infringing creditor’s rights should be established, and at the same time some suggestions of legal construction is put forward.The third party who infringes creditor’s rights shall assume the tort liability is this paper’s research object. Firstly, the paper explains our country has the urgent need to construct the system of the third party’s infringing creditor’s rights. And then, the development process of foreign legislation is analyzed. On this basis, the paper puts forward that we should not maintain the status quo point, also we should learn from the experience of other countries. Theoretical analysis of the third party’s infringement on creditor’s rights is necessary, which can provide strong support for this paper. The last part of the paper mainly concretely constructs the legal system on the third party’s infringement of creditor’s rights, in order to perfect the legislation of our country.The article is composed of preface, text and conclusion, and the body is divided into five chapters:The preface briefly discusses the third party’s behavior of infringing creditor’s rights, and the possible consequences with the court’s attitude after the perspective of a case. On this basis, this subject to discuss is introduced.The first part explains the principle of debt’s relativity, the legalbreakthroug of debt’s relativity, and the current law’s intensity of protection on the interests of creditors. This above comes to the conclusion that China has the urgent need to establish the system about thethird party infringing creditor’s rights. Following that, with the method of comparative analysis, Then use the method of comparative analysis, summarized and analyzed the phenomenon of the Two States for the same processing mode, sum up experience, to build our model of the system to provide feasibility.The second part is the third person that infringe creditor’s rights against the theoretical basis of the claim, to provide the theoretical support for my study. By summarizing briefly about the views that the two theories of theoretical dispute claim against the third party system,saying the negative view and the affirm view, and make a brief assessment of the problem.The third part summarizes the specific type of creditor’s rights being infringed by third party, it can be divided into four types and the paper briefly discusses the corresponding tort form to each type. Through strictly limiting its constituent elements, especially defining the subjective aspect being direct intent to avoid the third person to be blamed for whatever one does, the balance of the rights and interests of the creditor and the third person will be reached.The fourth part analyzes the liability for third party’s infringement on creditor’s rights and corresponding disclaimer. The liability occurs according to the obligor being faulty or not and the tort forms of third party. Three kinds of disclaimer are list.The fifth part puts forward the necessity of establishing the system on third party infringement of creditor’s rights, and after summarizing the current status of the legal and judicial practice in our country, concrete legislative suggestions are proposed.Finally, the conclusion briefly assesses the theoretical debate about the third party’s infringement on creditor’s rights.