论合同履行中违背债务人意思的第三人清偿

Discharge By The Third Party Which Breach The Will Of The Debtor

清偿是合同终止、债权债务关系消灭的法定原因。且清偿得以第三人为之为原则。目前,学界对于第三人清偿的研究主要集中在可能导致第三人清偿的原因行为,并对它们进行比较和区别。而对于履行中无厉害关系人违背债务人意思的第三人清偿,则仅是在理论上明确了该履行行为可以发生债务清偿的效果。但对该清偿行为的性质、效力、及债权人、债务人和第三人各自的请求权等问题却甚少关注。本文正是从这一角度出发,以合同履行中违背债务人意思所为之第三人清偿与其他有可能导致第三人清偿的原因行为的区别作为切入点,力图说明违背债务人意思之第三人清偿的性质及其他相关问题,以期为这种清偿行为提供一定的理论指引。

Discharge has the legal effect of terminating contract and debtorcreditor relationship. The payment can also be done by the third party. At present, research about performance by the third parties mainly focus on its reasons, But the study about discharge done by the third party which breach the will of the debtor, is only limited to that performance have some effect of discharge. Researchers pay little attention to the character and force of the behavior. They also disregard the right of claim occurs in the performance. This discharge is not consistent with the will of the debtor. And it is different from general reason of tender. The author take the difference as a breakthrough point, and try to explain the character and other things related of the discharge by the third party which breach the will of the debtor.