Study On The Performance Assistants

In Roman law,the debt should be paid off by the debtor generally.However,it doesn't mean that the payer must be the debtor,can also be others instead of the debtor to pay off.With the improvement of economy and social division,more and more debtors do not personally perform their debts,the debtor performs his debt with the help of others.In comparative law,it has formed a strong heritage in terms of doctrine and jurisprudence in the field of the performance assistants.The research is relatively and mature in the German legal system,so is the law of Japan and Taiwan law.The Holland civil code which is considered to be an excellent representative of the new era of the civil code,also provides for the concept of the performance assistantsThe scholars have not paid sufficient attention for this problem.Numerous studies still remain in our civil law system.A typical view is that it is meaningless to research this concept because of our special responsibility principle.This view led directly to serious consequences such as the theories of scholars is always floating on the surface.“Tourism Law of the People's Republic of China”comes up with the concept of the performance assistants.It aroused heated discussion because it is the first time this concept entries into our civil law system.This paper introduces the concept,characteristics and classification of the performance assistants,and gives an overview of the responsibility,the theoretical basis and the constitutive elements of the liability for performing assistant.The paper analyzes the shortcomings of our legislation and discusses how to regulate the performance assistants in the future Civil Code.This text divides into four parts:In the first part,the author enumerates several judgments in our country's judicature,which shows that it has different identification standard of the performance assistants in judicial adjudication.In the second part,The article describes the basic situation of performance assistants,and introduces the relevant foreign legislation situation and the view of the theory.First,the basic concepts of the performance assistants are outlined.Second,the article describes the basic characteristics of the performance assistants,the performance assistants is different from the third party in the debt assumption and the third party on behalf of debtor,its salient feature is that its behavior must be about performance of obligation,we can from the perspective of the subject matter of the obligation to define it.Third,extraterritorial legislation and theory are not uniform for the performance assistants classification criteria,this article considers it to be more reasonable to divide it into two species of legal representative and commuter,and the agent is a kind of commuter.In the third part,the article introduces the legislation and theory of the liability for performing assistant.First,the article introduces its theoretical basis,and evaluates new theories and traditional theories.Secondly,this paper argues that the liability for performing assistant is on no-fault liability,and the liability for performing assistant in addition to meet the basic elements of the requirements,but also need to be determined in accordance with the specific provisions of the law.In addition,this paper outlines the scope of liability for liability and introduces the special circumstances of the performance assistant's tort.In the fourth part,the article introduces the law about the performance assistants in our country and puts forward the relevant suggestions for the defects.The concept of the performance assistants in the “Tourism Law of the People's Republic of China”is mainly discussed in this section,and the concept of the third person in the Contract law and the performance assistants were compared and analyzed in this part.As our legislation to performance assistants is too simple,especially without the provisions of the definition of performance assistants.Our legislation should take consideration of the standard of the performance assistants and shall improve how to be responsible for the performance assistants.