第三人利益合同制度研究

发布时间：2018-03-02 14:39

本文选题：合同相对性原则　切入点：合同中第三人　出处：《中国政法大学》2006年硕士论文　论文类型：学位论文

【摘要】：合同是特定当事人间的协议，原则上仅在当事人间有效。合同相对性原则作为合同规则和制度的奠基石，在大陆法系和英美法系均得到普遍遵守。然而随着市场经济的深化，现代社会经济生活呈现出前所未有的广泛性和复杂性，合同相对性原则已无法回答和解决实践中出现的新情况、新问题，也越来越难以满足平衡社会利益、实现司法公正的需要，因此经过学说、判例和立法的不断努力，合同法从近代以来不断地扩张合同效力，最终确认了第三人的合同权利。我国《合同法》草案也曾规定了第三人利益合同中第三人的直接请求权，但1999年新颁布的《合同法》对此问题的规定却相当模糊。不仅第三人得否取得合同上的权利未能明确，而且条文设计也过于简略。故此，理论界纷争不断，实践操作困扰丛生，实有再加以研究和明确的必要，亦为本人写作之目的。本文共分引言、正文、结论三大部分：引言部分，提出文章所欲讨论之问题，明确对第三人利益合同的界定，指出本文的论述范围与任务，并阐明解决此一问题的理论意义。正文分三部分内容：第一部分，首先对合同相对性原则的确立及发展沿革作了阐述；其次，，考察了两大法系及国际私法中有关第三人利益合同的法律制度和立法例，厘清了其形成和发展的脉络。得出第三人利益合同制度从形式上看是对合同相对性原则的突破，实质上却与合同相对性原则的精神相一致的结论。该部分为我们从整体上了解和把握合同第三人理论提供了便利，进而为我们研究合同对第三人的效力问题奠定了理论基础。第二部分，对第三人利益合同的效力问题进行了比较全面的理论分析，并在此基础上，阐释了大陆法系中有关合同对第三人效力问题的学说、观点。本部分重点从民法宗旨、合同法特有的意思自治原则及社会经济关系的角度出发，探求第三人利益合同的效力根源，得出自律和他律都是第三人利益合同的效力根源的结论。最后，将第三人利益合同与相关合同进行了比较，以期在实践中取得更为准确的认识。综上，该部分明确了第三人利益合同的效力内容，回答了立法上为什么要规定第三人利益合同制度这一问题，进而对第三人利益合同有了更深的理
[Abstract]:Contract is an agreement between specific parties, which is only valid between parties in principle. As the cornerstone of contract rules and systems, the principle of relativity of contract is generally observed in both civil and common law systems. However, with the deepening of the market economy, Modern social and economic life presents unprecedented extensiveness and complexity. The principle of relativity of contract has been unable to answer and solve the new situation in practice, and new problems are becoming more and more difficult to meet the needs of balancing social interests. The need to realize the judicial justice, therefore through the doctrine, the case law and the legislation unceasing efforts, the contract law unceasingly expands the contract validity from the modern times, The contract right of the third party was finally confirmed. The draft of the contract Law of our country has also stipulated the direct claim right of the third party in the contract for the benefit of the third party. In 1999, however, the provisions of the contract Law promulgated recently were rather vague. Not only was it not clear whether the third party should obtain the rights in the contract, but also the design of the articles was too brief. There is a need for further study and clarity, but also for the purpose of my writing. This paper is divided into three parts: introduction, text and conclusion:. In the foreword part, the author puts forward the question that the article wants to discuss, defines the contract of the benefit of the third party, points out the scope and task of this article, and clarifies the theoretical significance of solving this problem. The text is divided into three parts:. In the first part, the author expounds the establishment and development of the principle of relativity of contract, and then studies the legal system and legislation of the contract of third party's interest in the two legal systems and private international law. The paper clarifies the formation and development of the contract, and concludes that the contract system of the third party is a breakthrough to the principle of relativity of contract in form. In essence, the conclusion is consistent with the spirit of the principle of relativity of contract. This part provides us with convenience to understand and grasp the theory of the third party of contract as a whole, and then lays a theoretical foundation for us to study the validity of contract to the third party. In the second part, the author makes a relatively comprehensive theoretical analysis of the validity of the contract for the benefit of the third party, and on this basis, explains the theory and viewpoint of the validity of the contract to the third party in the civil law system. This part focuses on the purpose of the civil law. From the point of view of the principle of autonomy of will and the relationship between society and economy, this paper probes into the effective root of the contract of interest of the third party, and draws the conclusion that self-discipline and heteronomy are the root of the contract of interest of the third party. The third party interest contract is compared with the related contract in order to obtain a more accurate understanding in practice. In summary, this part clarifies the effect of the third party interest contract. It answers the question of why the third party's interest contract system should be stipulated in legislation, and then has a deeper reason for the third party's interest contract.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2006
【分类号】：D923.6

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