论合同相对性原则的适用边界

以义务主体特定与否之标准,将权利划分为相对权与绝对权,造成了无法说明债权人与第三人之相互作用关系的根据与内容的局面。为填补这一漏洞,债权物权化以合同相对性原则之例外的身份被提出。然而,债权物权化可划分为广义债之关系物权化与狭义债之关系物权化。法律构造上,前者实为合同的法定概括移转,后者则是债权的一般性担保手段,所涉合同权利义务均未指向第三人,并非合同相对性原则的例外。自反而缩,合同相对性原则的适用范围应以旨在实现履行利益之合同权利义务为限。反之,辅助实现履行利益以及以固有利益保护为目的之义务不单指向债务人,第三人亦应有此负担。基于此认识,既可破除债权物权化之迷思,又可建构第三人对合同当事人负有行为义务之正当性基础。

On the Applicable Boundary of the Principle of Privity of Contract

According to whether the obligor is specific or not,the rights are divided into relative rights and absolute rights,which lead to the situation that the basis and content of the relationship between the creditor and the third party cannot be explained.The trend of the creditor’s rights turning into property rights has been proposed to fill this gap as the exception to the principle of privity of contract.However,the creditor’s rights mentioned in this concept can be understood both in a broad sense and in a narrow sense.The former is actually the mandatory transfer of a contract,and the latter is the guarantee of the creditor’s rights,which are not exceptions to the principle of privity of contract.After reviewing the principle of privity of contract itself,the application scope of this principle should be limited to the rights and obligations aimed at realizing the interests of performance.On the contrary,the obligations to assist the realization of the interests of performance and to protect the interests of integrity should be borne by not only the debtor but also the third party.Based on this understanding,we would not only break the myth of the trend of the creditor’s rights turning into property rights,but also construct the justification basis of the third party’s obligations of conduct to the contracting parties.