Study On The Protection Of The Third Party’s Rights Of The Third Party Beneficiary Contract

The rapid development of market economy has brought about the diversification of transaction subjects,and many transaction activities must rely on the construction of contracts for the interests of the third party to make the transaction chain more efficient and safer,such as the online shopping express contract,the partnership contract.China’s civil code responses to the practical demands,its item 2,article 522 establishes the general specification of third party beneficial contract,and clear about the third party has the direct perform the right of claim and claim for liability for breach of contract,to make up for gaps in the contract legislation in our country,it’s significant for the performance of the third party beneficiary contract and the protection of the third party’s right.But there is only one legal provision to adjust the third party beneficiary contract,it’s not only too thin for the third party beneficiary contract system of the existing design,but also avoid some controversial issues about the third party’s rights as the core and pivotal content of the third party beneficiary contract system,such as the acquisition and remedy of the third party’s rights,leave them to theory and practice to solve.Therefore,this paper combines the relevant provisions of the civil code to discusses and analysis the protection of the third party’s rights from the acquisition,exercise and remedy of it,clarifies some theoretical disputes,the paper holds that should first clear the acquisition elements of the third party’s rights,then guarantee its exercise and provide remedy when it is abused;At the same time,it also provides suggestions on the incomplete legislation,in order to provide reference for practice.This paper is divided into four parts:The first part is overview of the protection of the third party’s right.It introduces the definition,characteristics,subject,object and content of the third party’s rights,the significance of the protection of third party’ rights.Firstly,according to the source of the third party’s right,the third party’s right is defined as the right of direct performance claim obtained by the third party other than the parties to the contract due to the provisions of law or the agreement of the parties.Therefore,the third party’s right belongs to creditor’s right in nature,but there are many differences with creditor’s right,and it has independence as well as subordination.Secondly,the subject,object and content of the third party’s rights are introduced.The subject of the third party’s rights refers to the third party other than the contract party who has the rights according to the legal provisions or the agreement of the parties,including natural persons,legal persons and unincorporated organizations.The object of the third party’s right refers to the object of the third party’s right,that is,the interests of the third party agreed in the contract,and generally refers to the payment behavior of the debtor to the third party.The third party’s rights include the right of refusal,the right of claim for performance and the right of claim for liability for breach of contract.Finally,it analyzes the significance of the protection of the third party’s rights from three aspects: the practical needs of the market economy,the settlement of the disputes of the third party’s rights in judicial practice and the realization of the purpose of creating the third party’s rights.The second part analyzes the problems existing in the protection of the third party’s rights of the third party beneficiary contract in our country.Realizing the right is the ultimate goal of creating the right,and realizing the third party’s right requires a series of guarantees provided by law.Since the acquisition of rights is the premise,the exercise of rights is the way to realize rights,and the remedy of rights is the protection of realizing rights,therefore the protection of the third party’s right should run through the whole process of the acquisition,exercise and remedy of the third party’s right.Based on this,this part analyses the protection of the third party’s rights along the main line of the acquisition,exercise,remedy of the third party’s rights,and sorts out the following problems in the protection of the third party’s rights of the third party beneficiary contract in our country: First,in the acquisition of rights,the acquisition requirements of the third party’s right are not clear,such as the relationship between the basic contract and the third party’s interest clauses is not clear;Second,in the exercise of rights,when the third party requests the debtor to perform the debt,it faces the obstacles of the debtor’s defense and the party exercising the right of alteration and cancellation.Third,in terms of the right remedy,the third party’s right remedy is not sufficient,the third party does not have the right to terminate the contract,and its right to participate in arbitration is not guaranteed.The third part introduces the extraterritorial legislation of the third party’s rights of the third party beneficiary contract and its enlightenment to China.In view of the problems raised in the second part,this part investigates the relevant legislation of major countries of the two legal systems on the acquisition,exercise and remedy of the third party’s rights.It is found that the Continental law focuses on the determination of rights,while the Anglo-American law focuses on the remedy of rights.In view of this difference,Our country should learn from essence of them,and on the basis of determining the requirements of obtaining the rights of the third party,we should also strengthen the remedy of the third party’s rights,because the acquisition of rights is the premise of exercising rights,and the remedy of rights is the guarantee of the realization of rights.The fourth part,in view of the protection of the third party’s rights in the acquisition requirements of unclear,obstacles in the exercise of rights,rights remedy is not sufficient to put forward suggestions.Firstly,the acquisition requirements of the third party’s rights should be clarified.First,there is a basic contract and the agreed terms for the benefit of the third party is stipulated,so the relationship between the basic contract and the agreed terms for the benefit of the third party should be clarified.Second,the parties have the intention to endow the third party with the right,but the expression of the party’s intention is not limited to express explicitly and can be judged by interpretation;Third,the third party does not refuse within a reasonable period of time,and the meaning of the third party’s refusal relates to whether the third party can obtain the right,so it is necessary to clarify the relevant rules of the right of refusal.Secondly,the exercise of the rights of the third party is guaranteed.Facing the defense of the debtor and the risk of the party changing or revoking the third party’s rights,it can take the following ways to solve: on the one hand,clarify the defense of the debtor against the third party in principle limited to the scope of the basic contractual relationship,and the defense outside the basic contractual relationship should be strictly limited.And the defense based on the basic contractual relationship should also be limited by the parties’ agreement,legal provisions and the principle of good faith;On the other hand,based on the protection of the third party’s trust interests,it can combine with the binding rules of offer to establish the restriction rules on the parties’ right to modify and cancel,so as to ensure the smooth exercise of the third party’s rights.Finally,the remedy for the third party’s rights should be improved.This paper argues that on the basis of clarifying the specific way of liability for breach of contract claimed by the third party,the parties should also limit their right to terminate the contract and give the third party the right to participate in arbitration.