论真正利他合同中第三人违约救济

On the Third Party’s Remedies of Genuine Contracts in Favour of a Third

摘要: 在因债务人发生给付障碍的情形下，若原因关系与补偿关系存在约定，债权人可在原因关系中，通过债权让与的方式将解除权让与给第三人，且债权人与债务人于补偿关系赋予第三人权利后，债权人仍可通过与债务人约定，自愿放弃权利或另行约定权利。在无约定时，第三人可向债务人主张包括可得利益在内的损失。对于第三人违约金请求权，则需区分惩罚性与赔偿性违约金。第三人在无约定下不享有合同解除权，但债权人行使解除权时应履行对第三人的通知义务。同时，也可从原因关系入手，对第三人进行相应的救济。

Abstract: In the event of payment obstacles caused by the debtor, if there is an agreement on the cause relationship and compensation relationship, the creditor can transfer the right of rescission to a third party through the assignment of creditor’s rights in the cause relationship. After the creditor and the debtor have granted rights to the third party in the compensation relationship, the creditor can still voluntarily waive rights or agree on separate rights through an agreement with the debtor. In the absence of an agreement, the third party can claim losses including obtainable benefits from the debtor. For the third party’s right to claim liquidated damages, it is necessary to distinguish between punitive and compensatory liquidated damages. The third party does not have the right to terminate the contract without an agreement, but the creditor should fulfill the obligation of notifying the third party when exercising the right of rescission. At the same time, it is also possible to provide corresponding relief to the third party by starting with the cause relationship.