Study On The Creditor's Rescission Right Of China

The creditor's rescission right is retained and developed by countries of continental legal system, which is a kind of traditional system of ancient Rome. It has the specific prescription in article of seventy-four and seventy-five of contract law of China as well as concerned judicial interpretations. The property of the system is considered generally as a lasting debatable problem which is divided into four kinds of viewpoints ----the right to ask for something,the forming right,the mediate view and responsibility say. It is not thing-in-itself of the creditor's rescission right but result of exercising right that creditor's asking the transferee for returning liability assets to debtor. So the dissertation holds the viewpoint of the forming right because it has not the quality of the right to ask for something.There are four important conditions regarding the creditor's rescission right. All that action of debtor's disposing assets is not belonged to the object of the rescission right. The contract law should hold room for the extent to scope of the object of the right by the enumerating and summarizing way. It is advisable to adopt the rating method or criterion that the public bid is competed at an imitative auction and the proportion is descending while amount of assets is progressing when an obvious unreasonable low price is estimated and judged.The creditor should apply to the people's court for cancelling debtor's action who reduce the liability assets and increase the negative it. Both debtor and transferee have the possibility to be defendant. Creditor should abide by the rules of limitation for one year or five years regarding the article seventy-five of contract law when he exercises the rescission right. The regulations of both one year and five years are scheduled period. After creditor exercising the right, judges usually definite that the relation, which is of right and liability between creditor and debtor, is not vanished completely according to real circumstances. In special conditions, the liability assets of returning may be paid to creditor according to priority who exercises the rescission right.