Study On The Case Of Dispute Over Third Party Infringement Of Creditor’s Right Liability Of Great Wall Company V.Jilin Credit Guarantee Company

The transfer of property and the stability of transaction all depend on the performance of debt and the cashing of interests.If the creditor’s right is infringed by a third party,the creditor can only claim the liability for breach of contract to the debtor according to the relativity of the contract,then the loss of rights and interests may be difficult to be compensated.Therefore,the exploration of the creditor’s right tort system has become inevitable,not only conducive to the solution of the dilemma,but also to improve the protection system of the creditor’s right.However,the relativity of creditor’s rights and the ambiguity of legislation make it doubtful that creditor’s rights should be included in the protection scope of the tort liability law.Therefore,it has become an urgent problem to clear the relief way of creditor’s rights applicable tort liability,and to clarify the elements of creditor’s rights tort and liability assumption.The Supreme People’s Court took the dispute of infringement of creditor’s rights between Great Wall Company and Jilin Credit Guarantee Company as a case of communiqu,and established that the third party’s gross negligence infringement of creditor’s rights should be liable for tort.Through the analysis of the dispute points of the case,the article first makes clear that the creditor’s right belongs to the object of the tort,the antagonism of the creditor’s right comes from the knowledge of the content of the debt,and the knowledge is inviolable,thus unblocks the theoretical basis of the creditor’s right tort system.Secondly,the constituent elements of creditor’s right tort are different from the general constituent elements of ordinary torts.It is necessary to judge strictly whether a creditor’s right tort is constituted by six elements: the subject of the act,the object of the act,the infringing act,the damage result,the causality and the subjective fault.Thirdly,the common infringement of creditor’s rights is based on the commonality and should have the identity of behavior,subjectivity and result.For the joint tort with the participation of the debtor,it should be clear that there is malicious collusion between the two parties,otherwise the debtor cannot form joint tort of creditor’s rights with the third party.Finally,the tort liability of creditor’s rights is mainly borne by damages,and the form of tort liability is distinguished by the way of infringement.Where a third party directly infringes upon a creditor’s right,it shall be solely liable for the damage.If the third party indirectly infringes upon the creditor’s right,it and the debtor shall bear unreal joint and several liability.When the third party and the debtor collude with each other to maliciously infringe the creditor’s right,they shall bear joint liability.