Research On The Legal Problem Of Third Party Intervening Contract Conclusion

The legal problem of third party intervening contract conclusion has already attracted enough attention in foreign law circle,and it has become a legislative consensus for many countries to solve that problem by mean of the systems in tort law.However,the problem does not receive enough attention from the law circle of China,with only a few researches aiming at that problem.How to protect the various rights or interests enjoyed by contracting parties in the stage of concluding contracts has become one of the problems that badly need to be solved in the civil law circle of China.The present endeavor is to help the theoretical research of law science,legislative practice and judicial practice by means of discussing the legal problem of third party intervening contract conclusion.Except for introduction and conclusion,this paper is divided into three parts:Introduction is mainly about the significance of the selected subject and the purpose of the present writing.The first part is the introduction of the basic theory concerning the problem of third party intervening contract conclusion.In this part,the writer firstly delimits the concept of third party intervening contract conclusion,defining the behavior of third party intervening contract conclusion as "the behavior that third party intervenes the process of others' conclusion of contract intentionally,which leads to the failure of contract conclusion that is being entered into by others".Secondly,the writer in this part carries out the comparative research on the adjustment manners of third party intervening contract conclusion held by different countries' jurisprudence theories.Moreover,in this part the occurrence time and manifestation of third party intervening contract conclusion is analyzed.After refuting the opinion of "the occurrence time of third party intervening contract conclusion starts form the time that offeror sends out offer and ends by the time that acceptance of offeree is received.",which is held by the present law circle of China,the writer,based on the theory of will declaration,puts forward the opinion of "the occurrence time of third party intervening contract conclusion starts from the time that offeror sends out offer or indicates by means of his behavior that he is to send out the offer to offeree and ends by the time that contract has been established". Furthermore,the writer examines the process of contract conclusion,analyzes the concrete approach of third party in intervening contract conclusion and makes it clear that what kinds of behavior shall be deemed as the behavior of third party intervening contract conclusion.The second part is concerned about the jurisprudence foundation on which the behavior of third party intervening contract conclusion shall be adjusted by the private laws.In this part, the writer firstly refutes the opinion of "the behavior of third party intervening contract conclusion encroaches contracting parties' right of acceptance",which is put forward by some legal scholars,and from the perspective of interests,puts forward the opinion that the encroached object of the behavior of third party intervening contract conclusion is the contracting interests of contracting parties.Then the writer examines contracting interest in the scope of "interests" and "private laws" and the specific logical thought goes by syllogism: all the interests are vulnerable to the encroachment and contracting interest is a kind of interests,so it is also vulnerable to encroachment.Where interests are subject to encroachment,interest subjects may produce the request for remedy;contracting interest falls into the scope of the interests which shall obtain justice evaluation in private laws and shall be protected by private laws.Thus it provides theoretical basis for the protection of contracting interests by private laws.The third party is concerned about the construction of the tort liability system of third party intervening contract conclusion in China.In this part,the writer mainly argues that the behavior of third party intervening contract conclusion shall be adjusted by tort law within the civil law,by combination with the particularity of the behavior of third party intervening contract conclusion,analyzes and produces constitutive requirements for the tort liability system of third party intervening contract conclusion,which provides the identification standards for determining the behavior of third party intervening contract conclusion.In the conclusion part,the writer mainly comparatively analyzes the legislative models in foreign countries of adjusting the behavior of third party intervening contract conclusion,and puts forward legislative suggestions on the problem of how to adjust the third party intervening contract conclusion in the future formulation of tort law in China.