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Research on the System of the Third Party’s Infringement on Creditor’s Rights

Author: ZhaoZuo
Tutor: LiuYinLiang；ChenZuo
School: Inner Mongolia University
Course: Legal
Keywords: The third party Infringement claims The basis of the theory Necessity China’s legislation
CLC: D913
Type: Master's thesis
Year: 2011
Downloads: 103
Quote: 0
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Abstract


In 1853, the case of Lumley v. Gye set a precedent for the system of the third party’s infringement on creditor’s rights. Since then, the debate around this system has never stopped. Because of the great impact of the contract relativity principle, pelple have divergent opinions on it theoretically. Although most countries had clarified that in the legislation, and made gratifying achievements in practice, China is still in the initial stage in this aspect. The judgement for typical cases have shown evidence to admit such a system, however, it has not been formally stipulated in the laws. Thus, the lack of explicit stipulation of this system will undoubtedly threaten the interests of the creditors and excert bad influences on the stability of China’s market economy.In view of this situation, this thesis attempts to expound on the system and strive to make some breakthrough. Firstly, this thesis will analyse the system of the third party’s infringement on creditor’s rights theoretically and introduce the system clearly by revealing the concept of third-party infringement claims system. In this process, this thesis will reveal its true meanings such as sure said, denial. Secondly, this thesis will enumerate all types of the third party’s infringement claims, and fully discusses how to establish disclaimer. Then, this thesis will present the development of the system by comparing continental law with Anglo-American law. Thirdly, the thesis will discuss the necessity of the system in legislation and put forward a feasible proposition after examing the theory and pratice in China.Based on the theory and practice of the British, America, France and German, this thesis analyzes the identification methods and forms of expression by adopting comparison research method. Meanwhile, in line with putting practice into theory and consulting many related references and data, this thesis intends to introduce detailed content. At present, the cases of third-party infringement claims system increase gradually, and it makes the first appearance in legislation and practice. Therefore, it is an urgent task to clarify and establish the third-party infringement claims system in our country, which is also the aim of my thesis.

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