The Classification Of The Third Party's Infringement Of Claims

Although the debate over whether claims can be infringed by third parties and whether tort law protects it has not stopped completely,the views on support for creditor infringement in theory and practice have increased significantly in recent years.There are various creditor infringements in real life,and the liability for breach of contract cannot provide relief to the creditor's rights under certain circumstances,and the relief of tort liability is still necessary.Although the negative theory based on the relativity of creditor's rights and the affirmation of the theory of inviolability of creditor's rights are reasonable,they also go to two extremes.The relativity of creditor's rights does not become an obstacle to the infringement of creditor's rights,and it is not reasonable to give general protection of creditor rights based on the invulnerability of creditor's rights.The core of the problem is to determine which claims will involve third-party liability and can be protected by tort law.The third party's non-infringement obligation is based on the premise that the creditor's right can be known,and the knowledge of the creditor's right cannot be infringed.As far as the scope of rights protected by tort law is concerned,both the German Civil Code and the European Tort Law Principles regard social openness as a consideration for the protection of rights and the degree of protection.Equity with open conditions can be first included in the scope of tort law protection and apply general liability clauses,while claims are usually not open,which determines that tort law is difficult to provide general protection.Therefore,from the perspective of reasonable balance between rights protection and freedom of behavior,it is of great significance to distinguish the protection of creditor's rights based on whether the creditor's rights are open.According to the classification criteria of whether the creditor's rights are publicized,the third party's infringement of the creditor's rights can be divided into two categories: the infringement of the publicity of the creditor's rights and the infringement of the undisclosed creditor's rights;depending on whether the creditor's rights are public or not,the degree of protection of the different types of creditor's rights by the tort law is different,and the normative means is to design for the subjective fault difficultly or not.According to this,the specific protection of the distinction is as follows: the tort law protects the publicity of the creditor's rights in principle and sets a relatively loose fault requirement;unpublished claims are protected only if they meet the requirements of liability such as intentionality,and are less protected.Whether the liability for credit infringement is established depends on the determination of the subjective fault of the third party;whether the disclosure of creditor's rights has an important influence on the determination of the subjective fault of the third party,the difficulty of publicizing the creditor's rights or knowing the difficulty of the creditor determines the degree of the third person's negative duty of care,thus forming different requirements for subjective faults of third parties.The securitized creditor's right confirmed in writing is easy to be known as the materialized form of the third party.The potential responsible person can foresee the creditor's rights violation,the third party can directly infringe the creditor's right,and the third person can constitute the infringement of the securitized creditor's right due to general negligence.Claims disclosed in the form of possession or written documents may be used to counter the third party who knows the existence of the creditor within a certain scope,the specific third party constitutes the infringement when the general duty of care was negligence violated.For the non-publicity rights,it is difficult for a third party to know,and the third party can only be identified as a creditor infringement if it knows that the existence of the creditor is deliberately infringed upon in pursuit of the consequences of the damage of the creditor's rights.It is a temporary treatment measure that focuses on the current theory and judicial practice by distinguishing protection of the creditor's rights as a standard of they are publicized or not,and forming the different types of infringement claims and their responsibility component.In the foreseeable future,whether the legislation clearly stipulates the infringement of the creditor's rights is worthy of expectation.