Feasibility Research On Empowering The Right Of Claim For Breaching Contract To A Third Party Of Contract

Since the Roman Law, the Principle of Privity has been persisted by theorists and practices across countries, become a classic principle cross the civil law system and the common law system. According to the Principle of Privity, the rights and obligations shall be enjoyed and undertook by the contract parties, the third party of contract shall neither enjoy rights nor undertake obligations, that is, the effectiveness only exists among the contract parties. The Principle of Privity has become one of important theoretical foundation of the distinction of contractual obligation and tort obligation, and lay the foundation for the establishment and development of the civil law system of the countries in civil law system.With the development of society, booming of the economy, and progress of the science, the Principle of Privity is facing more and more challenges now, breakthroughs, such as prejudications and statute laws, of the Principle of Privity appear sometimes. The reason of this phenomenon is if we still persist the Principle of Privity strictly in a highly prosperity society, if debtor cause creditor and third party suffered losses, the third party is difficult to get the same reimburse status as the creditor, the reimburse difficulty of the third party is bigger than the contract parties. So, some prejudications and statue laws set examples that under certain circumstances, the third party could involve in the contract relationship, enjoy the rights of contract, undertake obligations of contract, and the the system of protecting third party by contract is established and developed under this background.The relationship of contract shall be only exists among contact parties, if the contact protects the third party, it will surely break the Principle of Privity, and this involves the domains of contract law and tort law, may cause concurrence or confliction of the contract law and tort law, also involves re-structure of civil law system, which will be an important matter. So, it is necessary to research this matter and relative theoretical matters, study on the necessity and rationality of this matter, as well as the compatibility to the existing civil law system.Now, countries around the world which has established the system of protecting third party by contract mainly are Germany, France, and the U.S., in Germany, it’s called system of protecting third party by contract, in France it’s called regimeof immediate prosecution, in the U.S. it’s called regime of interest related third party guarantee. In Germany’s system of protecting third party by contract, the mainly theoretical matters are the theoretical foundation of this system and the range of third party. Now, the common theory in Germany insists that the theoretical foundation of the system is the expansion of debtor’s collateral obligations, that is to say, the collateral obligations not only involves another party of the contract, but also involves the third party apart from the contract. The range of third party, the most important principle is the range shall not be too large, and the third party shall be foreseen by the debtor, and the third party shall have special and close relationship with creditor. As far as the researches in our country on this system, many scholars focused on the Germany’s system of protecting third party by contract, few scholars focused on France’s regime of immediate prosecution and the U.S. regime of interest related third party guarantee. I am going to study on the three systems mentioned above, analysis and summary it’s exclusive features and advantages and disadvantages.According to the current practices of legislation and judiciary, the third party could only file tort suit to the debtor instead of contract suit, due to the burden of proof, the rights of the third party could hardly get immediate and reasonable protection, this is not good to protect the third party outside the contract relationship. I think this deadlock is hard to be solved by perfect the tort law, it’s necessary to establish a new system to protect the third party. If we doing so, the third party could have two different ways to protect themselves, which would be very convenient for third party to protect themselves. This article wishes, by research the basic theoretical questions of the system of protecting the third party by contract, combining with the practice of legislation and judiciary of other countries, analyze the necessity of establish similar regime of of defendingthe third party based oncontact relationships in China as well as how to establish the system in our country.This article is separated into six parts, forward; chapter 1 questions and the deadlock in our country; chapter 2 the comparative law researches of the system of protecting the third party by contract; chapter 3 the current research status and reviews in our country on the system of protecting the third party by contract; chapter 4 we should establish the system of protecting the third party by contract in our country; conclusion.