Research On The Protection Of Third Party Rights In Altruistic Contracts

Paragraph 2 of Article 522 of the Civil Code of the People’s Republic of China is a general provision for the protection of the rights of the third party to a truly altruistic contract,which plays a landmark role in the institutional process of protecting the rights of the third party.Before the Civil Code came into force,China only provided for some types of altruistic contracts in the field of special law,such as insurance,trusts,transportation of goods and other contractual fields,which also could only play a regulatory role in the special field.However,because of the short length and general provisions of the Civil Code,the altruistic contracts only have a general role,and do not respond to the many detailed issues that arise in practice,which is not conducive to the complete protection of the rights of third parties.The protection of the rights of third parties is particularly important in social interactions,therefore,the system of protecting the rights of third parties can be studied by drawing on the excellent legislative experience at home and abroad,and at the same time,on the basis of a full understanding of China’s judicial practice.The body of the thesis is divided into four chapters:The first chapter is a brief introduction to altruistic contracts and third parties.Firstly,a brief introduction was given to the basic theory of altruistic contracts,analyzing the characteristics of the contract and the legal relationship between the three parties involved in the contract;Secondly,by comparing altruistic contracts with other similar content,the characteristics of altruistic contracts are further clarified;Then it discusses the legal status of the third party in the altruistic contract--the third party is not a party to the contract.Using the modern procedure theory--"interests+due process evaluation=rights",it is clear that the interests of the third party granted by the altruistic contract are rights based interests;Chapter Wei clarifies the nature of the rights of third parties by clarifying that most of their rights come from the agreement of the parties,and considers them as creditor’s rights.The second chapter is a discussion of the current situation of the protection of third party rights in altruistic contracts.Firstly,the current legislation is briefly sorted out;then,by searching and summarizing the adjudication documents of altruistic contract cases in China in recent years,a simple data analysis of the cases is made in the form of a table,which shows the current tendency of the courts in China in adjudicating altruistic contract cases and the development trend of the number and types of cases of this type,and the following conclusions are drawn: in the legislation--The criteria for determining altruistic contracts are unclear;the third party is involved in altruistic contracts,and the rights of the parties should be subject to certain restrictions in order to protect and balance the interests of the three subjects,but this restriction has not been unified in judicial practice;the content of the rights of the third party is missing in the legislation;the lack of specificity and omission in the legislation has led to the judges in the process of judicial decisions The following problems have emerged: the judges in the dispute whether the dispute is altruistic contracts,the difference between the reasoning of the decision is more obvious;judges also argue about which contractual rights of the parties should be restricted;the content of the rights of the parties also have differences due to the lack of specific legislative rules.The third chapter is a comparative analysis of the relevant legislative provisions of other countries and regions on the protection of the rights of third parties in altruistic contracts,and summarize and reflect on them,with a view to providing reference and inspiration for the interpretative application of the protection of the rights of third parties in altruistic contracts in China.Chapter 4 is an attempt to explain and add rules to the second paragraph of Article 522 of the Civil Code by analyzing the current situation of the protection of the rights of third parties in altruistic contracts in China and clarifying the shortcomings,as well as studying and reflecting on the provisions of other countries and regions.In addition to the second paragraph of Article 522 of the Civil Code and other related provisions,we also propose an explanatory proposal for the institutional structure of the protection of the rights of third parties by integrating the content of special laws such as insurance and trusts: first of all,we will clarify the criteria for the recognition of altruistic contracts that are not provided for by law and are not clearly agreed by the parties.First,the determination is done in three steps:first,the parties’ intent is carefully explored,and the parties’ intent takes precedence;second,when the parties’ intent is lacking,the contract is determined based on the type and purpose of the contract,and the contract is interpreted by examining the terms and conditions of the contract as a whole and according to the transaction customs;third,the system is determined from the original purpose.Second,altruistic contracts involve the rights of third parties,in order to balance the rights of third parties and the protection of the rights of the parties,it should be clear that the rights of the parties should be subject to restrictions,including the contractual rights of the parties and the debtor’s defenses should be subject to restrictions;finally,when the debtor is in default or incomplete performance,the third party and the creditor jointly enjoy the right to request the third party to pay or assume the continued performance of the right to confirm.The right of the third party and the creditor to request the third party to pay or to assume the continuation of performance in case of default or full performance of the debtor should be recognized.The parties may agree in the altruistic contract that the third party can acquire the rights granted to the third party in the altruistic contract only when it is burdened with certain obligations,or only when certain conditions are fulfilled or the time limit comes,and the third party can acquire the rights finally and definitively if it does not exercise its right of refusal within a reasonable period of time,and it acquires this right,and the parties do not agree or limit the third party’s right to dispose of the rights in the altruistic contract.The third party is free to dispose of the rights acquired from the altruistic contract if the parties have not agreed or limited the third party’s right to dispose of the rights in the altruistic contract.