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Study On The Legal System Of The Creditor's Right Of Rescission In China

Posted on:2011-04-07Degree:MasterType:Thesis
Country:ChinaCandidate:L ZhangFull Text:PDF
GTID:2166330332471853Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
The legal system of a creditor's right to rescind originated from the Roman Law. Right of Rescission is adapted and deeply studied in the civil law countries such as Japan, Germany, and France. In China although the research on the creditor's right of rescission started lately, the achievement is impressive owing to the efforts of our scholars. However unfortunately in the Contract Law and its judicial interpretation, the provisions regarding the creditor's right of rescission remains inadequate, and due to lack of legal provisions, the creditor's right of rescission remains intact many times. It is vitally necessary for China to promote the combination of the practice and theory on the creditor's right of rescission.Firstly the author summarizes the definition and theoretical basis. Secondly by selecting some typical cases in recent years the author, regarding the elements of rescission, analyzes the practical situation and the typical problems in juridical system. Lastly the author offers some advices with respect to the improvement of the creditor's right of rescission.Specifically, this thesis is composed of four chapters.Chapter 1 is a brief introduction to the definition of the creditor's right of rescission. In addition to its definitions in foreign civil law system, this part concerns about the theoretical differences on the nature of the system, and the author explains that the creditor's right of rescission has a dual characters as to the right of formation and the right of claim. Lastly, in order to clarify this system and its characteristics, the author compares the creditor's right of rescission with the definitions such as voidable contract, bankrupt right of revocation, right of subrogation, request to avoidance of the contract, and property preservation.Chapter 2 is about theoretical analysis regarding the establishment of the creditor's right of rescission. It points out that this system breaks through the limitations on the relativity of contract, and aims at the balance of protecting the creditors, the autonomy of debtors, and also the trade securities with the third party. At the same time the good faith doctrine as well as the prohibition of abuse of rights principles are the important theoretical basis on the creditor's right of rescission.Chapter 3 is about the research on the creditor's right of rescission in the juridical situation and its typical problems. Based on some typical cases, the author points out that the system is nowadays applied in a narrow way, and the criteria of"lawful and valid right of claim","harmfulness of debtor's acts","assignee's malice"still currently remain vague. Chapter 4 poses some advices on the creditor's right of rescission inChina. The author shares her own opinions as to the applications of the creditor's right of rescission, the criteria of"lawful and valid right of claim","the harmfulness of debtor's acts","assignee's malice", and whether the creditor should be given the priority of compensation.
Keywords/Search Tags:right of revocation, juridical practice, current problems, legislative proposal
PDF Full Text Request
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