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On the claims of transfer

Author: WeiZhi From: www.yourpaper.net Posted: 2009-03-31 04:57:40 Read:
[Abstract] This article discusses the internal validity and external validity problem, which occurs after the assignment of claims behavior are what the nature of, and immediately after to analyze the constituent elements of the claims and transfer system, and finally address the assignment of claims on certain issues The claims table see so with claims offset focuses on. This paper tries from legal theory and judicial practice, the two aspects of exploration Clear Solitude, analysis of the defects of the current legal system, and propose solutions envisaged.
[Keywords] assignment of claims; constituent elements; effectiveness; claims table see so and
, Debt and the transfer of the legal nature of
Relativity principle in common law countries, the transfer of the debt attributable to the debt problem and that the effectiveness of the debt belongs only between the creditor and the debtor, the interests of the third person other than the debt shall be set for him in debt enjoy the right to appeal; debt transfer agreement is essentially also a benefit of a third party entered into the contract. Common law and equitable, and are experienced in the treatment of the issue of transfer of the debt from the general prohibition to allow free transfer of the change process. Representative of the early days of the civil law from Grotius to Steyr, in varying degrees, admitted claims can transfer theory. Later, the civil law countries such as Germany, Japan and other countries have also in their own civil code provisions of the debt sale.
There is no uniform law of obligations, but an important component in the form of debt - in terms of the contract, issued in 1986, the General Principles of the Civil Law of the People's Republic of China (hereinafter referred to as the "Civil Law"), 91 expressly provisions of the party to the contract the rights and obligations of the contract, all or part of the transfer to a third person, shall obtain the consent of the other party, and may not for profit ". This is the first law of the debt transfer system.
79 published in 1999, "Contract Law of the People's Republic of China (hereinafter referred to as the" Contract Law ") explicitly provides for the assignment of claims that the legal system, the creditor may contract the right to transfer all or part to a third person" Article 80 also provides that, the "obligee assigns its rights, it shall notify the debtor, without notice, the transfer has no effect on the debtor. No denying the fact that the General Principles of the Civil Law of the provisions of the contracts of transfer of rights at the time it is progress, but now. Is behind the times. The current Contract Law "system of assignment of claims made to comply with the provisions of the trend of the world, this change reflects a major change of China from a planned economy era, during the transition to the market economy era. Market economy emphasizes the freedom of contract, the creditor has been regarded as something of a similar capital has great economic value, freedom of contract to respect the free will of the people, the people in the market and economic life in the frequent economic exchanges the past firmly unchanged single creditor-debtor relationship is no longer suited to the impact of the increasing complexity of economic life, therefore, China's "Contract Law" on the transfer of claims clearly defined, to adapt to the needs of the times, will certainly promote 2l century, the development of China's market economy.
China's "Contract Law" stipulates that the contract claims Transferability. Compelling, but "not for profit" and "shall obtain the consent of the other words in the General Principles of the Civil Law, the law removed. The law did not expressly require: the transfer of the debt in the form of a contract; but the relevant provisions can be seen from the "Contract Law": the legislators certainly been thinking of the impact of the Anglo-American "Contract". The transfer of the debt, the transfer can transfer their claims to any other person that the assignee as to whether profit-making, which is agreed upon by the parties within, is not subject to the interference of the state power, but also as the most representative of the economic The behavior of the external appearance - contract (contract), in the society of today's commodity exchanges have become increasingly frequent, the role is huge, which itself is representative of the economic benefits. Therefore, you want to prohibit the assigned claims between the parties for profit is impossible. In addition, modern countries in a growing market economy, the meaning and scope of the claims is very different compared to the past. Claims as property rights, use value, which is considered to be an economic value of the property. Finally, this provision is contrary to the principle of "Contract Law" and "Civil Law" full autonomy respected; contrary, allow the parties to freely transferable between claims. For accelerated economic exchanges. Conducive to the prosperity of the society. "Contract Law" Article 80, paragraph 2, provides that notice of the transfer of rights of creditors shall not be revoked, unless agreed to by the assignee. Where you can see, the emphasis here is on "agree", that agreement, and in accordance with the provisions of the Anglo-American contract law, the two sides implications of behavior is the contract. Therefore, our legislators assignment of claims acts as a contractual relationship provisions.
Second, the constituent elements of the assignment of claims
The transfer of the debt, there must claims exists e As for the debt itself is what form? I believe that this should analyze specific issues. Most scholars believe, the grantor must exist valid claims. Shen satellite, for example, that the grantor shall be effective contractual rights (1); book "Principles of Contract Law" (Law Press) that must be lawful and valid contractual relationship exists;, etc..
I also believe that claims the content itself invalid behavior is absolutely invalid assignment of claims; substandard but the creditor body as the case of the transfer should occur and determine its validity. For the conditions attached to the debt, I think, should be prohibited for sale. Has contractual rights into reality claims in the future, I believe that should allow its transfer from the point of view of encouraging trading.
Secondly they must notify the debtor shall notify the debtor for the transfer of the debt, on the legal issues, the world has taken a different approach to the national legislation, can be classified as follows: without notice doctrine, the debtor's consent doctrine and must notify the doctrine.
Contract law in most countries and regions in the world as well as China's "Contract Law" must notify the doctrine adopted this view. Once again, the assignee must have the main qualifications. The creditor assignee conditions, debt successfully fulfill give enough say that it plays a very important role in Debt to fulfill the needs of the creditor and the debtor both sides to cooperate to complete the new creditors refused to partake of the debtor to its debt to fulfill or to increase the difficulty of the debtor in the compliance process, the case of breach of contract claims they exist, according to the "Contract Law debtor> provides escrow. However, it is not difficult to see that the main reason for this situation is that the main qualifications did not review the assignee. Should be made clear that the review assignee main qualifications are not in conflict with the notice of assignment of claims principle: review of the assignee of the main qualifications in order to make claims to perform more feasible, thus ensuring the successful performance of the creditor, reduce disputes.
Third, the ban on the transfer of debt
In the following situations in accordance with the law, creditors can not be transfer of claims to a third person:
(A) may not be transferred in accordance with the nature of the debt claims. Specific identity-based claims. Such as pension to take delivery of gold; Again, the revolutionary disabled pensions of workers due to work disability pension costs, demobilization, a grant of demobilized soldiers, demobilization fee. 2. Claims arising from close ties with labor. Such as painter creditor relationship to others portraits. 3. Claims based on the trust relationship between the creditor and the debtor. As commissioned by hiring. 4. Not as a creditor. The most typical than peer Jingye claims.
(B) in accordance with the agreement between the parties, not the assigned claims before the conclusion of the contract, the parties had been in accordance with the oral or written agreement, the parties can not be the transfer of claims to a third party, then it should respect the law of the contract is an important principle - parties the principle of "autonomy", should prohibit the transfer of the debt. The question now is how this statutory effect to the parties to the internal conventions? Namely, the legal effect of this internal conventions have no such binding external third party? Here actually comes to how to maintain a bona fide third, I In reference to the provisions of Germany and Japan after that a distinction should be made between the different situations:
The first case, if the creditor is in violation of the original contract is transferred to a third party claims in the third-party case without the knowledge of good faith, shall be deemed effective behavior of the transfer of claims, it should protect its effectiveness. The debt would fall to a new creditor (third party) to the performance of its obligations, losses resulting from the transfer of people (creditors) bear. Assigned claims no right to transfer the debt grantor may profit, but whether it is worth studying the case of unjust enrichment 7. We know that the creditor is a relative weight that debt exists only between the creditor and the debtor, as previously described, claims may be the subject of the transfer, then the right to assign the claim, if any people, is equivalent to the right to assign others property (because both parties have agreed in advance shall not allow the creditor), the grantor to dispose of the property of others is illegal, so the transfer of property obtained illegally acquired should be as unjust enrichment return debtor. Return of unjust enrichment is still not enough to compensate for the loss of the debtor, the debtor is entitled to dip rights-based behavior, request the claims the grantor compensation loss to make up for the shortage. If the illegal grantor to the claims at higher than market prices, the excess part of the proceeds of the value of the property should be returned to the debtor.
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