Attached To The Study Of The Contract System To Protect The Role Of The Third Party

With the rapid development of society,the number of cases of damage to the third party of contract is increasing.The relativity of contract is the means to realize the autonomy of will,but also has a long history,which is a principle established since Roman Law.However,as social relationships become more and more complex,adhering to the principle of relativity of contract and limiting the effectiveness of the contract to the contracting parties can not meet the actual needs of society.The contract with the function of protecting the third party breaks away from the principle of relativity which has been highly respected by all countries since Roman law,so as to provide relief in contract law for the rights and interests of a certain range of the third party,so that not infringed by the debtor's performance.This system is based on the principle of good faith,which is conducive to the construction of China's trustworthiness system,breaking the boundary of traditional civil liability theory,providing relief on contract law for pure economic loss,and helpful to perfect the liability system of China.This article takes the contract with the function of protecting the third party as the research object,which bases on the basic theories of its formation,basis,content and so on,and makes judicial practice investigation and legislative analysis on relevant cases,so as to find out the existing issues and put forward some concrete ideas by reference of the proper contents of the legal system in foreign law.Based on the above,in addition to the introduction and conclusion ofthis article,this system is discussed in four parts.The first chapter is about the practical demand of our country for the contract with the function of protecting the third party.Firstly,this chapter introduces the relevant background of the contract system with the function of protecting the third party.With the transformation of individual standard to social standard,there is a crisis in the relativity of contract,the principle of good faith and the accompanying obligation derived from good faith lead to the expansion of contract liability,which thus becomes the theoretical basis for the emergence of this system.Secondly,it introduces the process of emergence of this system,which was first proposed by Germany and gradually developed into a relatively mature system.Finally,the practical demand of introducing this system in China is introduced.The second chapter introduces the theoretical investigation and analyzes the theoretical basis of this system.There are several theories on the theoretical basis of this system: a type of the third party beneficial contract,the theory of customary law,the theory of supplementary contract,the theory of collateral obligation arising from good faith.I consider that the collateral obligation arising from good faith is the theoretical basis of this system.The theory circles have different opinions about whether or not to introduce this system in China.There are positive opinions represented by Li Yongjun,negative theory represented by Wang Liming,and compromise theory represented by young scholar Sun Peng.The third chapter introduces the foreign application of this system.Firstly,It introduces Germany's contract system with the function of protecting the third party,followed by a similar system in the United States.Both systems are designed to protect the rights and interests of the third party,but there are differences in both systems about the scope of third parties and applicable conditions.The purpose of this chapter is to make a basic introduction and compare the similarities and differences of the above two systems,so as to explore which system should be adopted in China.The fourth chapter introduces the conception of contract system with the function of protecting the third party.Firstly,It clarifies the basis of right of claim of this system,then clarifies the type of contract to which the system applies and the stage to which it applies.Because collateral obligation can occur at any stage of any contract,this system applies to any type of contract and all stages of contract.Finally,the legal effect of this system is analyzed and the content of right of claim.