浅论第三人侵害债权
发布时间：2018-09-15 19:45
【摘要】：二十世纪以前,由于受罗马法影响较深,英美法系和大陆法系都严格恪守债的相对性原则。否认合同对于第三人的绝对效力。当合同债权受到来自第三人的侵害时,合同关系当事人之间仅能通过合同内部关系来解决,债权人无法依据合同向第三人主张权利。二十世纪以后,经济交往的日益频繁,债权的地位不断上升,交易类型的复杂化,使得合同的相对性原则在一定程度上得到了突破。虽然合同债权属于相对权,随着理论和实践的不断深入和发展,两大法系对于债权的保护也更加注重和全面,各国都通过立法或判例承认了第三人侵害债权(干涉合同)制度。本文立足于我国现行的民法理论和实践,以第三人侵害债权制度为研究对象,在对比两大法系关于第三人侵害债权制度立法及实践的基础上,探寻第三人侵害债权制度的相关理论。对于第三人侵害债权制度的构成要件、免责事由以及责任分配分别进行论述,尤其是对构成要件部分,本文认为除具备一般侵权行为的构成要件外,侵害债权还有其自己的特殊性,并且,此制度由于涉及对第三人行为的调整,为避免加重第三人负担,限制其行为自由,所以设置构成要件时应更加严格。最后,结合我国当前的学术现状、立法现状和司法实践,阐述我国现存法律体系下该制度我国的立法模式选择问题,为在今后以立法形式确立第三人侵害债权制度奠定坚实基础。
[Abstract]:Prior to the twentieth century, because of the deep influence of Roman law, both Anglo-American and civil law systems strictly adhered to the principle of the relativity of debt. Deny the absolute validity of the contract to the third party. When the contract creditor's rights are infringed by the third party, the contract relationship between the parties can only be resolved through the internal relationship of the contract, and the creditor can not claim the rights of the third party on the basis of the contract. After the 20th century, the increasingly frequent economic exchanges, the rising position of creditor's rights and the complication of transaction types make the principle of relativity of contract break through to a certain extent. Although the contractual creditor's rights belong to the relative right, with the development of the theory and practice, the two legal systems pay more attention to the protection of the creditor's rights. Based on the current theory and practice of civil law in our country, this paper takes the system of infringement of creditor's rights by the third party as the research object, on the basis of comparing the legislation and practice of the system of infringement of the creditor's rights by the third party in the two legal systems. To explore the third party infringement of creditor's rights system related theory. As for the constitution of the system of infringement of creditor's rights by the third party, the reason of exemption and the distribution of responsibility are discussed separately, especially for the part of the constitutive elements, this article thinks that besides the constitutive elements of the general tort, The infringement of creditor's rights also has its own particularity, moreover, this system should be more strict when setting up constitutive elements because it involves the adjustment of the behavior of the third party, in order to avoid increasing the burden of the third party and restrict its freedom of conduct. Finally, combined with the current academic situation, legislative status and judicial practice, this paper expounds the choice of the legislative model of this system under the existing legal system of our country. In the future in the form of legislation to establish the third party infringement of creditor's rights system to lay a solid foundation.
【学位授予单位】：中国青年政治学院
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D913
本文编号：2244323
[Abstract]:Prior to the twentieth century, because of the deep influence of Roman law, both Anglo-American and civil law systems strictly adhered to the principle of the relativity of debt. Deny the absolute validity of the contract to the third party. When the contract creditor's rights are infringed by the third party, the contract relationship between the parties can only be resolved through the internal relationship of the contract, and the creditor can not claim the rights of the third party on the basis of the contract. After the 20th century, the increasingly frequent economic exchanges, the rising position of creditor's rights and the complication of transaction types make the principle of relativity of contract break through to a certain extent. Although the contractual creditor's rights belong to the relative right, with the development of the theory and practice, the two legal systems pay more attention to the protection of the creditor's rights. Based on the current theory and practice of civil law in our country, this paper takes the system of infringement of creditor's rights by the third party as the research object, on the basis of comparing the legislation and practice of the system of infringement of the creditor's rights by the third party in the two legal systems. To explore the third party infringement of creditor's rights system related theory. As for the constitution of the system of infringement of creditor's rights by the third party, the reason of exemption and the distribution of responsibility are discussed separately, especially for the part of the constitutive elements, this article thinks that besides the constitutive elements of the general tort, The infringement of creditor's rights also has its own particularity, moreover, this system should be more strict when setting up constitutive elements because it involves the adjustment of the behavior of the third party, in order to avoid increasing the burden of the third party and restrict its freedom of conduct. Finally, combined with the current academic situation, legislative status and judicial practice, this paper expounds the choice of the legislative model of this system under the existing legal system of our country. In the future in the form of legislation to establish the third party infringement of creditor's rights system to lay a solid foundation.
【学位授予单位】：中国青年政治学院
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D913
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