On The Creditor's Right Of Revocation

Creditor's right of revocation originated from Roman law, and now has been established as an important legal system of most countries to ensure the realization of creditor's right——when a debtor decreased his property to harm claims, the creditor may request the court to revoke the act to protect his claim. But due to the differences of the theories on creditor's right of revocation and with the development of case law in different countries, creditor's right of revocation shows significant differences. Our "Contract Law" provides creditor's right of revocation, but it has more limitations and there are various explanations theoretically and practically. Therefore, it is necessary to analyze and argue the theories and legislations of creditor's right of revocation, in particular, different views and theories, with the purpose of providing a reference for our country's legislation of creditor's right of revocation.In the course of designing the system of creditor's right of revocation, we have to consider the logical construction of the system itself, at the same time, on the basis of the protection of creditors, the debtor's freedom of property management, the protection of transaction security of beneficiaries and assignees, and the degree of equality When a dispute occurs between the creditors and so on should be taken into account in all aspects. In short, it should meet practical operations and also safeguard the transaction security to some extent to balance interests of the parties.Firstly, we should understand the concept of revocation, so the first part introduces the different explanations of creditor's right of revocation by which we raise questions and begin to discuss. To recognize creditor's right of revocation further, we should know its legal nature which can not only help us to understand and differentiate between national legislations, but also help to build the system of creditor's right of revocation in our country.The second part introduces various theories about the nature of creditor's right of revocation, focusing on the analysis of these theories in terms of system logical construction combining national legislation. Through the argument and comparison, and considering the legislative status quo of China, it is more proper that we adopt compromise theory in legislation. This paper believes that creditor's right of revocation covers the revocation of acts of fraud damages and the qualification of debtor's position. This explanation complies with the usual understanding of revocation, and guarantees the internal logic and consistency of the system of creditor's right of revocation.The third part discusses the subject, object and defendant of creditor's right of revocation on the basis of its legal nature. Whether the claim of the creditor who carries out the right of revocation is due relates to the scope of creditors' protection, and also relates to various effects after revocation. The theories about its object varies in different countries, but the provisions of our contract law is clearly too narrow, and it is necessary to expand its content. Several typical acts which have been disputed for a long time are discussed here. The defendant depends on its legal nature, and this paper introduces the third party system of procedural law based on the compromise theory, in order to make a proper explanation in theory and practice.The fourth part focuses on the scope of exercising creditor's right of revocation and the effect of revocation. Our law has clearly stipulated that the scope of exercising this right should be limited to the scope of the creditor's claim. Many scholars disagree this view and think that it goes against the tenet of creditor's right of revocation——for the common security of all creditors, and even that the limitation of scope will inevitably lead to priority of compensation. I believe that it should be argued theoretically and practically: Firstly, it introduces the theory of relative revocation and make an analysis from the two aspects. The development of national legislations tells us the limitation of scope is a necessity in practice and a result of interests balancing. Finally it elaborates the effectiveness of the creditor's right of revocation. This paper insists on storage doctrine which is ultimate representation of the tenet. It is suggested to give other creditors more opportunities to participate in the distribution by procedural law, as far as possible to protect the interests of all creditors.