On The Third Party Infringing Creditor’s Rights Issues

The theory of the third party’s infringement of creditor’s rights originated from the United Kingdom and developed and improved in the legislative regulation and judicial practice of the two law systems.However,in China,the concept is still limited to the study and research in the academic circle after several attempts of legislation regulation failed.There is no doubt that China,as a civil law country,has always followed the principle of the dichotomy of material debt,and it is reasonable for the legislature to have doubts about the regulation of the creditor’s rights which are different from other absolute rights and lack of social publicity.However,in the prosperous and developing socialist market economy of China,the limitation of only using the liability for breach of contract to remedy the losses of creditor’s rights is more and more obvious,the progress will be made soon.This paper intends to make an in-depth analysis of the theoretical content of the third party’s infringement of the creditor’s rights,observe and compare the regulations of the third party’s infringement of the creditor’s rights by the laws of various countries,and finally put forward the author’s thoughts and Suggestions on improving the regulations of the third party’s infringement of the creditor’s rights in China.This paper mainly includes four parts: the first part,aiming at the third party infringement of the debt of the general theory of analysis.It includes the analysis and summary of its basic meaning,the discussion of the theoretical basis of it,the suggestion that it is a breakthrough in the relativity of the creditor’s rights.etc.which explains the rationality of the third party’s infringement of the creditor’s rights,and it’s practical significance.The second part mainly deals with the constitutive elements of this concept.According to the opinions of scholars at home and abroad,the author puts forward five constitutive elements and discusses three different kinds of liability undertaking and exemption causes of the third party and debtor in the third party’s infringement of creditor’s right.The third part,uses the comparative method to compare Anglo-American law system and continental law system,observes legislation and judicial practice condition and comparing the similarities and differences between two big law system of regulation,and for our country at present regulation for this problem includes the legislation and judicial practice is what circumstance,put forward our country in the third person of the limitation of violation in the protection of creditor’s rights,including the existing regulatory scope narrow,the applicable law is not clear,the lack of legislation in the tort liability act,etc.The fourth part,aiming at the limitations of the third part,thinks about how to perfect the regulation in our country and gives the author’s Suggestions.By analyzing the first paragraph of article 6 of tort liability law and the second paragraph,this paper proposes how to regulate the third party’s infringement of creditor’s rights within the scope of tort liability law.Then,taking the codification of civil code as an opportunity,this paper proposes how to regulate it in the civil code.Finally,the author compares the above several kinds of regulations to form a final opinion.