| Under the influence of the Roman Law,the legislation of all countries in the world strictly follows the principle of contract relativity,and the contract is only valid between the two parties.The complexity of transactions in the economic field makes this principle unable to meet the practical needs,and a large number of altruistic contracts are involved in transactions.The law of the People’s Republic of China civil code(hereinafter referred to as the "civil code")of article 522 of the continuation of the contract law of the People’s Republic of China(hereinafter referred to as the "contract law"),paragraph 1,article 64 as the supplement again true altruism as paragraph 2 of the contract,make up the blank of altruism contract system in our country,but the content is more general,not conducive to the interests of a third person comprehensive protection,Further clarification is needed.This paper is divided into four chapters: The first chapter is about the overview of the third party in the altruistic contract,which defines the altruistic contract as the real altruistic contract.The legal status of the third party is similar to that of the creditor,but not the subject of the contract.The provisions of altruistic contract in China’s Civil Code are not perfect,and there are no clear provisions on how the third party obtains the right and how to exercise the right.In judicial practice,the principle of relativity of contract is usually adhered to,which complicates the legal relationship,increases the judicial cost and fails to protect the rights of the third party in a comprehensive and systematic way.The second chapter studies the third party’s right acquisition in altruistic contract.The theory of presumptive acquisition,as an innovative act of altruistic contract norms,is in line with our national habits,and is both scientific and rational.The rights of the third party are derived from the basic contract.If the parties to the contract do not explicitly express their intention to confer benefits to the third party,the judgment should be made based on the purpose of the contract and the intention of the parties.For the interests agreed by the parties,the third party can of course accept them by making positive expressions of intention,but in the case of no special agreement in the contract,when the third party does not exercise the right of refusal,simple silence will produce the effect of inferential expressions of intention.The third chapter studies the exercise of the third party’s right to claim payment.Creditors also enjoy the right to claim payment,but the object of payment is only limited to the third party.When the third party claims the right,the debtor can resist the request of the third party according to the right of defense granted by the Civil Code.The exercise of the third party’s rights is also limited by the restrictive clauses on the third party’s rights in the underlying contract.The rights granted to the third party by the Civil Code are relatively independent rights,and the third party should be allowed to dispose on the basis of voluntary principles.In order to avoid the impact on the rights of the third party,the modification or termination of the contract by the parties shall be appropriately restricted.The fourth chapter studies the third party’s claim for breach of contract liability.The Civil Code gives the third party the right to claim the liability for breach of contract,and from the legislative point of view,it recognizes that the third party can directly bring a lawsuit against the debtor according to the altruistic contract,which is a great breakthrough.The third party has no right to claim punitive liquidated damages.If the contract stipulates that the third party can claim compensatory liquidated damages,the third party can only claim such liability and cannot claim compensation for actual damages.The third party’s claim for damages should include the actual loss and the loss of the recoverable interest.The creditor also enjoys the right of claim for liability for breach of contract.In case of conflict with the claim for liability for breach of contract of the third party,the third party can only claim for continued performance but cannot claim for damages in lieu of payment. |
