题　名  论合同的相对性  
作　者  杨美华  
作者单位  吉林大学,法学院,长春市 130012  
专　业  民法学  
指导教师  崔建远，  
学位级别  303  
馆藏索取号  3980334  
中文文摘      本文运用比较法、历史研究和价值分析的方法，在明确合同相对性原则的固有含义的基础上，评述了第三人利益合同、第三人侵害合同债权以及产品责任领域中“附保护第三人作用之契约”等制度对合同相对性原则的突破，研讨了合同的相对性原则与这些制度如何并存共荣的问题，并结合我国的实际情况，提出了相关的立法建议。
    本文主张，合同相对性原则应是合同法的基太原则，在立法中应有明文规定，同时；为适应现代市场经济的需要，有必要设立合间相对性的各种例外规则。如第三人利益合同、第三人侵害合同债权、附保护第三人作用之契约等。当然，在进行具体的制度设计时，还应直辖市好合同相对性原则和其各种例外规则之间的关系，为之找到一个适当的平衡点。

英文文摘  The doctrine of privity of contract, which was once considered to be unshakable, is a basic principle of contract systems of all countries. However, because the modern market relations with the contract as ties has the unprecedented extensity and profundity, it is hard to satisfy the needs of balancing social benefits and realizing judicial justice to scrupulously abide by the doctrine of privity of contract. Therefore, the exceptions of the doctrine are becoming to be admitted by the contract laws of all countries. Thus, it becomes to be an important problem which must be solved how to view the statue of the doctrine in modern contract law and how to coordinate the relationship between the doctrine and its exceptions. This thesis studies systematically on the doctrine of privity of contract. It consists of four parts, i. e. the connotation of the doctrine; privity of contract and contracts for third party beneficiary; privity of contract and interference with contract rights; privity of contract and product liability.
In part one, the author firstly make clear the intrinsic implication of the doctrine, pointing out that privity of contract means that the effect of contract concerns only parties to the contract; no one except a party to the contract can acquire rights under it, and no one except a party to the contract can be subjected to liabilities under it. And secondly, based on this, the author analyzes three aspects which privity embodies, i. e. privity of subjects, privity of rights and duties, privity of liabilities. Finally, the author goes further into the meanings of the doctrine by way of analyzing value, pointing out that the doctrine not only embodies private spirits of self-determination, and sets up the limits between contract law and other laws, but also, more important, it protects freedom to act of third parties.
In part two, the author firstly analyzes that contracts for third party beneficiary is pounding at the doctrine of privity by comparative and historical method, pointing out that the definition of contracts for third party beneficiary broke initially through the doctrine of privity, and since the beginning of 20th century, its development is challenging the doctrine severely. Secondly, the author discusses how to coordinate the relationship between privity and contracts for third party beneficiary, indicating that the statue of the basic principle of the doctrine must be maintained, while contracts for third party beneficiary must also be admitted in some exceptional cases, and limits of the third party beneficiary must be set up rationally. At last, based on the above analyses and conclusions, the author points out the necessity, feasibility of stipulating the doctrine in explicit terms in our legislation, and gives a concrete suggestion to the legislation. Meanwhile, the author holds that the system of contracts for third party beneficiary must be established in order to meet the needs of modern market economy, and the contract rights of the third party beneficiary must be considered in some special situations.
In part three, the author firstly emphasizes the differences between "Absolutheit of Jus in rem" and "Relativitat des Forderungsrechts fo jus in personam" after introducing the establishment of the system of interference with contract rights in all countries, then, based on this, the author points out that "jus in personam" is, like "jus in rem", inviolable, it can be the object of torts, and the establishment of the interference with contract rights is a breakthrough to the doctrine of privity. And secondly, the author analyzes that the system of interference with contract rights conflicts with the doctrine of privity by way of predicating values, that is, the former makes the third party exempt from being inculpated by the creditor and protects his freedom to act, while the latter makes the creditor claim his rights to the third party in order to protect the creditor''s benefits. The third, the author, based on judging the benefits, researches how to balance the doctrine of privity and the system of interference with contract rights, pointing out that the constituent elements of the tort must be strictly limited, the scope of application of the system must be confined rigorously, and the scope of compensation of the tort must be defined reasonably. Finally, the author, according to actual situation in our country, indicates that is necessary to establish the system of interference with contract rights and the conflict between the system and the doctrine of privity must be balanced properly.
In part four, the author firstly analyzes that the doctrine of privity limits and affects the actions for damages in the field of defective-product-liability. Then, the author focuses on the methods overcoming and avoiding the doctrine in contract law and tort law in all countries in the field of defective-product-liability, and introduces emphatically the system of "Vertrag mit Schutzwirkung Fur Dritte" in German law, the system f third party beneficiaries of warranties expressed or implied in American law and the system of the direct rights to sue in France law. At the end, combining with the "status quo" of legislation and judicial practice in China, the author points out that we should use the experience of other countries for reference in the field of defective-product-liability.

关键词  合同,相对性,调和,自由词  
分类标识  D923.6  
论文注解日期  19971212  
总页数  118P