| In traditional civil law,the protection object of tort law is mainly absolute right.Because the nature of creditor’s right belongs to relative right,creditor’s right is usually not regarded as the protection object of tort law.For a long time,the establishment of the system of the third party’s infringement of creditor’s rights has been controversial in the civil law academic circle of our country,but most scholars hold a positive attitude.Unfortunately,in 2009,China promulgated the tort liability law,and the third party’s infringement of creditor’s rights has not been included in its adjustment scope.With the development of social economy,the position of creditor’s rights is more and more prominent.Driven by the interests,the forms of creditor’s rights infringement are more and more complex and changeable.There are a large number of cases of third party’s infringement of creditor’s rights.According to the principle of relativity of debt,the contract law can’t regulate the third party outside the debt relationship,and the protection object of tort law does not include the creditor’s rights,which means that when the third party outside the debt relationship makes the behavior of infringing the creditor’s rights,the interests of the creditor can’t be fully protected.Based on the current theory and practice of civil law in China,this paper takes the issue of the third party’s infringement of creditor’s rights as the research object,on the basis of elaborating the relevant theory of the third party’s infringement of creditor’s rights,compares the legislation and practice of the third party’s infringement of creditor’s rights in the two legal systems,and leads to the current situation of the development of the third party’s infringement of creditor’s rights in China from the academic,legislative and judicial aspects Question.Then it discusses the types,constitutive requirements,exemption reasons and responsibility bearing of the third party’s infringement on the creditor’s rights,especially for the constitutive requirements.In addition to the constitutive requirements of the general infringement,the third party’s infringement on the creditor’s rights has its own particularity.Moreover,because this system involves the adjustment of the third party’s behavior,in order to avoid increasing the burden of the third party,it restricts its behavior In order to be free,it is necessary to set up the constitutive requirements more strictly.Finally,combined with the current academic status,legislative status and judicial practice of our country,this paper expounds the choice of legislative mode of the system under the existing legal system of our country,and draws relevant legislative suggestions from its functional orientation,including the necessity of incorporating into the category of tort law,the strict determination of subjective elements,the type enumeration,and the stipulation of the limit of the third party’s tort liability,so as to form a legislative form in the future To establish the system of the third party’s infringement of creditor’s rights to lay a solid foundation. |
