Research On The Legal Problems Of The Third Party Infringing Creditor's Rights

Tort Liability Law mainly protects absolute right,whereas the creditor's rights,which is relative by nature,are generally not protected by this law.China enacted Tort Liability Law in 2009.Although the theory of infringement upon creditor's rights by the third person has been controversial for a long time in the civil law academia,most of the scholars hold positive towards the contents of it.Regrettably,the theory was not included in the Tort Liability Law.It is fair and reasonable for lawmakers to hold cautious attitude to it because the absolute division between jus in rem and creditor's rights is always considered as a tradition in the civil law system.Therefore,the conflict between the relativity of creditor's rights and the concept of considering it as an object of torts is what challenges most in building up the theory.However,with the rapid economic and social development,creditor's rights has undoubtedly become the major means and purpose of market circulation and wealth appreciation.In recent years,it has become frequent for the third party to infringe creditor's rights in various ways.In order to implement an all-round guarantee for creditor's legal rights,there is still a lot of work to do than just regulating the liability system for creditors to perform the payment obligation.For considering interests of all parties and ensuring a full effect of creditor's rights,countries around the world began to explore more comprehensive ways to protect their rights in both theory system and judicial practice.This paper takes infringement upon creditor's rights by the third person as the research object.In addition to introduction and conclusion,the following five parts are mainly discussed in this paper.The first part is to help understand and analyze the concept of infringement upon creditor's rights by the third person.Firstly,the author expounds on its basic meaning;Secondly,the author analyzes its properties and puts forward her own understanding on whether it should be classified as adjustment of contract law or adjustment of tort law;Finally,through in-depth exploration of its theoretical basis,the author concludes the theory is essential to stabilize the market-oriented economy and drive the era forward.The second part is to stress the typological analysis of infringement upon creditor's rights by the third person.Through the analysis and comparison of its typical shape,the author sums up the most representative behavior types.This part is the focus of the paper,and is also a controversial issue in the academic field.In this chapter,the author enumerates four specific types of the infringement,namely failing to fulfill the payment obligation due to the fault of the third party,reiteration trade,inducing the debtor to break a contract and infringing attribution of creditor's rights.It is hoped that the theoretical system can be more perfected through typological analysis of the infringement act upon creditor's rights by the third person.The third part is to explore from the perspective of constitutive requirements.The infringement upon creditor's rights by the third person is different from the common infringement act mainly because it has different constitutive requirements.In this case,the author concludes that the requirements shall include the following five aspects: lawful and valid creditor's rights as the objective elements;a third party outside debtorcreditor relationshipas the main body elements;intentional act out of tort-feasor as the subjective elements;the third party carrying out unlawful infringement act,and lastly the act directly causes damaging effects.The fourth part is to illustrate the relief system of the infringement upon creditor's rights by the third person for creditors.At present,the research on liability bearing is abundant,but the design of the relief system is still not perfect enough.Aiming at the creditor's right relief,the issue of the liability bearing and concurrence of both the third party and the debtor in the debtor-creditor relationshipis put forward in the paper.The liability bearing mainly includes three aspects: separate liability on the third party,joint and several liability on both the third party and debtor,and unreal joint obligation on both the third party and debtor.The author also puts forward coincidence of partial rights related to infringement upon creditor's rights by the third person in hope of further exploration on its theory system.In the fifth part,the liability exemption of the infringement upon creditor's rights by the third person is brought forward.It has its own features,which are quite different from the common infringement of the creditor's rights.These features are legitimate competition,execution of duty,counsel and contracts that can be terminated at any time according to the agreement.