利于第三人合同研究

利于第三人合同分为非真正和真正两种,本文仅考察后者。利于第三人合同与代理制度、债权转让以及赠与等制度都存在根本区别。从罗马法到当代各国民法典及其他民事立法,利于第三人合同制度经历了从禁止到许可并不断完善的过程。该制度涉及到三方法律关系,此种复杂的三方法律关系还表现在抗辩和不当得利等复杂关系上。我国《合同法》第64条并没有规定真正利于第三人合同,应就此作出修订。

Studies on Contracts in Favor of the Third Party

Contracts in favor of the third party can be divided into genuine and non-genuine categories. This article only deals with the genuine genre which differs from the institution of agency, assignment and donation. The institution of contracts in favor of the third party has experienced the process in which it had been at first prohibited in the Roman law and finally admitted as the society developed. Actually, the contracts in favor of the third party have triangle legal relations between creditor, debtor and the third party from which arise many complex legal problems such as the triangle restitution because of unjust enrichment and different defenses. Article 64 of Contract Law of the PRC does not regulate the genuine contracts in favor of the third party so that it must be revised.