| When a tort dispute occurs,it usually involves two parties,the infringer and the infringed.However,with the diversification of commodity trading forms,there will sometimes be a third party in the infringement relationship,which constitutes a third party infringement.In this case,when the third party infringes the creditor’s rights,the creditor can only protect the legitimate rights and interests by investigating the debtor’s liability for breach of contract.If the debtor does not have the corresponding economic strength,the creditor can not get effective relief.Moreover,the infringer is only subject to administrative punishment and can not seek civil law relief,which is obviously inconsistent with the principle of fairness in civil law.According to the traditional view of civil law,the object of tort generally aims at the civil rights such as security interest,usufructuary right and intellectual property right,but does not include the creditor’s right.There are different opinions on whether the creditor’s right can become the object of tort,some agree with it,and some oppose it.The opponents are limited to strictly abide by the relativity of debt and the non publicity of debt,It is believed that there is a dilemma in the construction of the third party infringement of creditor’s rights system on the theoretical basis.Throughout most developed countries,whether from the perspective of theory or from the perspective of case practice,they have formed a relatively clear interference contract system that is the third party infringement of creditor’s rights system.In order to protect the legitimate rights and interests of creditors in an all-round way,ensure that all parties can trade freely,and improve the efficiency of litigation,we should establish the system of Third Party Infringement of creditor’s rights as soon as possible in combination with China’s national conditions.Based on the principle of relativity of debt and the theory,legislation and practice of the breakthrough of relativity of debt,this paper deeply discusses the shortcomings of the existing system in protecting the rights and interests of creditors,and holds that China’s legislation should improve the legal regulation of the third party’s infringement of creditor’s rights as soon as possible.The main body of this paper consists of four parts.In the first part,the basic definition of this system is further combed through the case of the infringement of the third party’s creditor’s rights,and its meaning and legal nature are summarized.In the second part,the historical development of the extraterritorial interference contract system is combed by using the comparative analysis method,and the characteristics of different countries are compared,This paper summarizes the Enlightenment on the construction of the third party infringement of creditor’s rights system in China.The third part analyzes the difficulties faced by the establishment of the third party infringement of creditor’s rights system in China,such as theoretical difficulties,doubtful constitutive requirements,controversial liability allocation and so on.The fourth part,on the basis of the previous analysis,breaks down the theoretical obstacles,reconstructs the theoretical basis of the third party infringement of creditor’s rights system,proves that the constituent elements of the system should choose the theory of five elements,divides the direct infringement and indirect infringement,solves the disputes in the allocation of responsibility,and puts forward suggestions for the classification of the system legislation.That is to say,an independent chapter should be set up in the tort liability section to make clear provisions on the constituent elements and responsibility division of the third party’s infringement of creditor’s rights system,so as to make the handling of actual cases more practical and targeted. |
