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Balance Of Interests And Choice Of Institutions On Assignment Of Creditor's Right

Posted on:2005-02-04Degree:MasterType:Thesis
Country:ChinaCandidate:Y F LiFull Text:PDF
GTID:2156360152968266Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
By the combination of creditor's right with securities, securities creditor's right promotes the assignment of creditor's right effectively, the rules of which have been perfect comparatively. Although the assignment of common creditor's right has had a long history, its institutions and rules haven't been satisfactory yet.In the legal relationships of assignment of creditor's right, there are complicated relationships of interests between assignor, obligor and assignee, among which, the conflict of interests between obligor and assignee is the most conspicuous. To some extent, obligor represents static safety, while assignee represents dynamic safety of dealing. As can be seen from the history of assignment of creditor's right, creditor's right can't be assigned in ancient time and it is insured that obligor not be harmed due to assignment in traditional civil law, which reflects the value of static safety and safeguard of the interests of obligor. In modern civil law, more attention is paid to the dynamic safety of dealing and the interests of assignee, which is a modification to the principle of safeguarding the interests of obligor. It is an important issue to keep the balance of the interests among all parties, especially between obligor and assignee by means of choice of institution. As to the effectiveness of notice to obligor, there aren't great differences between legal system of Germany and France. The main differences lie in the effectiveness of notice to the other parties except obligor, which leads to the doctrines of establishment of contract, notice and registration.There are two doctrines, notice and awareness of obligor, on the issue of whether the interests of the knowingly obligor should be protected before notice.The notice of assignee should have some specific requirements. To avoid the overmuch risks obligor bears, obligor should have the right of drawing in the event of notice by assignee.In the case of superficial assignment, the notice should be given by the assignor and there should be some restricts on the notice by assignee. The superficial assignment can be applied to obligor regardless of his mental state. The obligor has the right to allege the application of not the superficial assignment but its invalidity. As can be seen by a research on comparative law, the effectiveness of the clause of forbidding assignment has been gradually restricted. In the course of interpretation and application of contract law in China, the clause mentioned above should have different validity according to the obligor's mental state. The obligor's right to revoke the contract shouldn't be restricted.The bona fide of creditor's right isn't accepted in almost any nations. However, some specific institutions share similarities with bona fide, which can be regarded as the acceptation of bona fide of creditor's right in exceptional cases. When the assignment is invalid, obligor has the right to restitute from assignee those obligor gives to the assignee and in theory the right is the claim of property right or unjust enrichment. Normally, obligor can restitute only from the assignor if the creditor's right assigned doesn't exist or obligor revokes the contract.
Keywords/Search Tags:Assignment of creditor's right, Notice of assignment, Superficial assignment, Bona fide, Claim of restitution
PDF Full Text Request
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