论涉他合同律毕业论文

摘  要

合同的相对性是整个合同法制度和理论的基础之1。涉他合同是适应社会发展需要而产生的对合同相对性原理的制度性修正。涉他合同之涉他，包括债务人有义务使第3人向债权人履行债务和第3人有权请求债务人履行债务两种情形。前者即由第3人给付合同，后者是向第3人给付合同。我国关于涉他合同的立法条文只是散见于各单行法中，合同法第64条、65条规定过于笼统，未赋予第3人任何法律地位，与德国法上的“经由被指令人而为交付”相同，因此不属于涉他合同。结合我国的立法现状及实践的需要，应在民法典及合同法中设专条对向第3人给付合同予以规定，明确向第3人给付的合同使第3人直接取得请求债务人履行的权利,债权人同时享有请求债务人向第3人履行的权利。

关键词：合同关系相对性；涉他合同；向第3人给付；法理分析

ABSTRCT

The relativity is one of the foundations of system and theories of Contract Law. The reason why the third party referred to the contract cone into being is to adapt to the need of social development and the institutional amendment to the contract relativity principle .The third party referred to the contract should include the following two :debtors have the duty to make the third party performing the debt to the creditors;the third party has the right to demand compensation.The former is named by Pays by the third person ,the latter is named by Pays to the third person.The legitimatize law on  the third party referred to the contract can only be seen in the special law . Although the articles 64 and 65 of contemporary Chinese contract law are similar with the German law regulation ——Geheissperson ,they do not entrust any legal status of the third Party ,they are not the contract referring to the third party.So in terms of the current legislation and the needs of practice ,it will adjust to the requirements of the improvement of legislation of the third party referred to the contract from both the Civil Code and the Contract Law which adding to the special atrticles of Pays to the third person .The third party getting his or her right to demand debtors performing the duty ,and the creditors have the rights to ask the debtors performing their duty to the third party is the contract which regulated that the third party can be paid .

Keywords: the contract relativity principle；the third party referred to the contract； Pays to the third person；The analysis of jurisprudence （转载自中国科教评价网http://www.nseac.com）
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