论“附保护第三人作用的契约”

On the Contract Cling to Protecting Third-part

自德国产生“附保护第三人作用的契约”以来,其在德国的判例与学说中不断发展、繁荣。我国现也有不少学者在对其加以研究。其中最困难之处在于如何解释“附保护第三人作用的契约”与“债权相对性”之矛盾。笔者从契约效力根源的角度提出“系统契约论”,解释了“附保护第三人作用的契约”之理论根基,认为我国应引进此制度,并将其继续应用到“附保护第三人作用的契约”的构成要件、法律效果、与侵权法之边界等问题,也附带地以“系统契约论”解释了契约法上之其他问题。

Since its birth in German, the Third Party Incidental Protecting Contracts have been developing and flourished in the cases and theories in German. There are also a lot of scholars who are studying these kinds of contracts. The most difficult part of it is how to explain the contradiction between the Third Party incidental Protecting Contracts and the relativity of debt. From the sources of legal effects point of view, the author put forward the theory of system contract and explain theoretical roots of the Third Party Incidental Protecting Contracts. In the conclusion, it is suggested that the system of the Third Party incidental Protecting Contracts be adopted in our country, and be applied in requirements , legal effects of the Third Party Incidental Protecting Contracts, and matters of boundary between torts law and contracts, incidentally, other matters on contract laws have been explained from the aspect of the theory of system contract.