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Research On The Constitutive Elements Of The Third Party's Infringement Of Contract Creditor's Rights

Posted on:2018-06-21Degree:MasterType:Thesis
Country:ChinaCandidate:J J ZhengFull Text:PDF
GTID:2436330542987848Subject:Tort
Abstract/Summary:PDF Full Text Request
Our country has not set up the system of the third party against the contractual creditor's rights.But with the breakthrough of the relativity of creditor's rights,the third party's infringement of the contractual creditor's rights as a type of tort is gradually accepted by everyone.A large number of scholars have been launched on the relevant issues of the third party's infringement on the contractual creditor's rights.This paper focuses on the relevant issues of the constitutive requirements of the third party's infringement on the Contractual creditor's rights.Through the analysis of the cases,scholars' opinions,the internal and external regulations,three issues are discussed.This paper tries to solve these three problems by drawing lessons from the theory and practice of foreign countries,combined with theoretical knowledge.For this purpose,this paper uses a variety of research methods like the method of case analysis,literature research methods and comparative analysis methods on discussing these questions.This paper is divided into the following four parts.The first part introduces the different appellation of the third party's infringement on the contractual creditor's rights,and tries to define the meaning by referring to the definition of the reference.By comparing the constitutive elements of the tort liability of the German model and the French model,combined with the characteristics of the third party infringement of the contract claims,the illegality of the action should be taken as an independent component.The four elements of the third party's infringement on the contractual creditor's rights are listed.The second part,three issues on the constitutive requirements of the third party's infringement on the contractual creditor's rights are proposed.Namely in the determination of subjective intention,whether or not to allow the presumption of intention.Whether negligence can constitute the subjective fault of the third party's infringement of contractual creditor's rights.The illegal judgment standard of the third party's infringement on contractual creditor's rights is not sure.In the third part,the theory and practice of the three problems in foreign countries are discussed respectively.This paper introduces the processing methods of foreign countries to deal with the three problems.By comparing and analyzing,the paper take the advantages to provide reference for solving the three problems.In the fourth part,on the basis of drawing lessons from foreign theory and practical experience,combined with the theoretical knowledge of all aspects,this paper puts forward some reasonable suggestions for solving the three problems.Namely:in the determination of subjective intention,limitedly allow the application of the presumption and allow the defendant to justify a reasonable defense.Negligence can not constitute the subjective fault of the third party's infringement of contract creditor's rights.On the problem of the illegal judgment standard of the third party's infringement on the creditor's rights,the standard of the combination of the general standard and the typical behavior is put forward.And the paper defines and lists the general standard and the typical behavior.A more operational formation to judge the standard is proposed.
Keywords/Search Tags:Third party's Infringement on the contractual creditor's rights, Constitutive requirements, Presumption of intention, Negligence, Illegality of the action
PDF Full Text Request
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