The Study On The Contractual Fraud Caused By A Third Party

In civil law,declaration of intention is the core element of the legal action,and causes legal effect.If the declaration of intention is not true,the legal action cannot causes corresponding legal effect.The fraud causes by the third party or the counterparty both will lead to an untrue declaration of intention,which called defect expression.Then,a series of problems come,like the validity of contract,compensation and relief.Though third party fraud contract is one type of contractual fraud,it has its own characteristics of definition,feature,legal effects,legal remedies,etc.Then,it cannot be completely equivalent to the usually widely known fraud caused by the counterparty.What's more,the remedies of the parties to the contract should not be excessively dependent on the relevant provisions on the Tort Liability Law.Under this circumstance,China has made a significant breakthrough in this area in legislation.Chapter six Article one hundred and forty-nine of the General Principles of Civil Code of the People's Republic of China is a new provision,which regulates the contractual fraud caused by a third party,and distinguishes it from duress from a third party.However,only one clause is hard to completely solve this kind of problems existing in practice.The divisions of the Civil Code need to adjust and improve the relevant stipulation next.In addition,we have no theoretical guidance on this now and that's what we need to study next.The methods of normative analysis,comparative research,concept analysis and case analysis are all used in this paper.First of all,the paper analyzes the current laws in China and finds out whether there are any defects in legislation to propose solutions based on this.Then,this article collects and analyses relevant cases to find out disputes and improve the theory of third party fraud.Through the concept analysis method,this paper analyzes the important concepts to clarify connotation and extension of third party fraud.In addition,based on comparative research,this paper analyzes the legislative model of third party fraud in Germany,France,Italy and other countries,and the legal procedures of similar regulations in the United States and the United Kingdom.Then,it compares those with the legislative provisions of our country to find out the pros and cons,and propose suggestions to improve the provisions of the contractual fraud caused by a third party.From above study and analyse,this paper holds that the third party in the third party fraud contract should not be extended except for special circumstances,but interpreted restrictively referring to the German law,the draft of the European Uniform Law and other stipulations.In conclusion,there are three points to protect the security of the transaction and promote honesty and trustworthiness in the transaction..The first point is to clarify the scope of the third party,who is a person has no special legal relationship with the contracting party and whose behavior cannot be attributed to the parties to the contract.The second point is to set the standard of the fraud caused by the third party.The last point is to refine the impact of third-party fraud on contract effectiveness and to perfect the relief mechanism for the victim by Culpa in contrahendo to protect the loss of trust interest.