Research On Nature Of The Third Party Beneficiary Contract

As agreement between specific parties, contract, in principle, shouldonly has legal effect between that specific parties. However, with thedevelopment of the society, the trades become more and more complex, andthe third party beneficiary contract has been wildly applied in insurance,transportation and other commercial areas. And, because of the specialadvantage on trading from the third party beneficiary contract, voice offounding the third party beneficiary contract system in civil law isgrowing. Countries including German, France, Japan and USA have alreadyset up this system in civil law, and, in draft of Contract Law of thePeople’s Republic of China, the right of direct claim of the third personhas been specified. However, in the Contract Law of the People’s Republicof China, which came into force as of October1,1999, that right wasdeleted. Due to the absence of the third party beneficiary contract system,scholars have a wild range discuss about whether the third partybeneficiary contract should be existed in Chinese civil law area or not,and if has how to regulate it. In my opinion, since the third partybeneficiary contract was from the reality, there is no necessary to proveits convenience for the business, instead the core problem of the third party beneficiary contract is how to regulate this system, and the mostimportant issue is the selection or confirmation of the nature of the thirdparty beneficiary contract. This thesis is divided into three chaptersto discuss the nature of the third party beneficiary contract:The first chapter is an overview of the third party beneficiarycontract. A real case during my internship period and the cases which wassearched during work was used in the thesis. Combine with the discuss ofthe article sixty-four of the Contract Law of the People’s Republic ofChina, the cases prove that requirement and ratification of the thirdparty beneficiary contract of the social reality, and the disorderlysituation on judicial area because of the absence of it, bringing out thenecessary of discussing the third party beneficiary contract’s nature.And, this chapter also defines some basic concepts of the third partybeneficiary contract and discriminate the system with other similarsystem for the convenient of the thesis below.The second chapter is an inspection of the third party beneficiarycontract in the comparative law method. It first began on the angle ofhistorical analysis, state the beginning and development of the thirdparty beneficiary contract on Roman law. And then discover the differentsituation of the third party beneficiary contract between differentcountries in comparing of their law in the angle of comparative method.Since the world did not have a common practice of this kind of contract,it is necessary to tidy the relative theories of the third partybeneficiary contract to clear the pros and cons of different theories anddetermine the legislative direction of this kind of contract in China.The third chapter analyses the nature of the third party beneficiarycontract in several lays. Firstly, through the analyses of the traditionaltheory, we make the conclusion that it is unpractical to give that kindsof contract a reasonable explain under the traditional civil law system.Secondly, through analysis the pros and cons of the legal fiction method, we found the defect of the legal fiction theory when using it on thecontract for the benefit of third party. And then, since the biggestdrawback of the theory which gain the right to third party directly isbreaking the principle of autonomy of will, the thesis demonstrate thatwith the right of refusal, the theory which gain the right to third partydirectly by the contract can work in the civil law system.