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Study On The Cancellation Right Of Creditor

Posted on:2005-08-10Degree:MasterType:Thesis
Country:ChinaCandidate:S H WangFull Text:PDF
GTID:2156360125455927Subject:Law
Abstract/Summary:PDF Full Text Request
This papers is divided into four different parts. The first part has explained that the nature of cancellation right of creditor, the second part having explained the parties who participate into the suit of cancellation, the third part has explained that the application and choice between cancellation right of creditor and invalid contract, the fourth part have explained the condition that the specific thing creditor exercises his cancellation right.First, second part: There are three main theories on the nature of Cancellation right of creditor, and each has different views in three kinds of theories. In fact, the difference now in our country on the nature of cancellation right of creditor is mainly between the theory of right of formation and theory of right of claim. After the revising of civil law code, there has been no space for the theory of right of formation in Taiwan from the law view. But the theory of claim itself has unavoidable contradiction in theory. Moreover, the application of the theory of claim in suit procedure will cause conflict with the traditional theory of litigation object directly. In terms of traditional theory of litigation object, the logic of the theory of right of claim that says is obviously confused.There are three different views in the theory of right of claim. The responsibility view belongs to the theory of right of formation and it is in fact the revision to the other two views only. The responsibility view can offer a good explanation the nature of cancellation right of creditor. But our country has not the same law as " the result on invalid in responsibility law " in Japan, therefore this kind of view lacks the legal basis in explaining. Even that, it is still possible to reach the similar result as the responsibility view as there is different provision on third person in suit procedure. Finally, the parties in the cancellation suit is on the question of nature of cancellation right of creditor.Third part: cancellation right of creditor and invalid contract have not any cross in application from the provision of our law, but it is not true in detail situation. Choice of application will happen as the different right that party claims or the different facts asserted. Although the invalid contract can not be cancelled, the fact is that the party presenting a lawsuit mainly decides a case to be applied by the provision of invalid contract or the provision of cancellation. Party's choice to the two mainly lie in his burdens of proof among the lawsuit. If creditor has enough evidence to prove debtor and transferee having co-false meaning, he can appeal this behavior to be invalid according to article 52 of Contract Law. If not, it will be comparatively favorable for creditor to cancel the behavior in accordance with article 74 of Contract Law.The fourth part: there is different theories focusing on that the specific thing creditor has right to cancel or not when the debtor has no financial strength to fulfill his duty. But the two theories have their own fault. In fact, it has been beyond the question that the specific thing creditor should be protected or not, now it should be the question to which degree the creditor should be protected. It is suggested to make further division specific thing, i.e. dividing it into irreplaceable one and replaceable one. Irreplaceable specific thing should be allowed creditor cancel in principle, the specific thing that can be substituted will be not allowed to be cancelled in principle because creditor can get replacement for his loss, even he can not get the right to cancel debtor's behavior. Of course, how to excise the division will be still a problem we have to face.
Keywords/Search Tags:Cancellation right of creditor, Cancellation suit, Invalid contract, Right of Formation, Right of Claim, Third party
PDF Full Text Request
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