Empirical Study On Effectiveness Of Creditor's Cancellation Right

The value of Creditor Cancellation System is recovering the debtor's liable property that should not reduced and protecting the interest of creditor, through rescinding the debtor's actions on positive disposition of his properties. Therefore, we provided for the system in our contract law and its judicial interpretation. While from the specific content of the law to watch, though there are stipulations on essential elements of Cancellation System, three applicable situations and legal consequences after exercising, the stipulations are pretty general without strong operability, especially for effects of Cancellation stipulated not clearly. The Supreme People's Court specify on 25th provision on interpretation of several issues of the application of "contract law"(a) as follows:when creditor lodge a Cancellation complaint in accordance with the stipulation on 74th of contract law asking for People's Court to revoke the behavior of debtor transferring property, People's Court should hear a case on his request. The behavior that rescind in accordance with law is really invalid originally. But how to effect the "invalid originally"? Is it recovering to the initial state that before debtor and assignee have conducted behavior? And how to return the property with each other? In case of assignee would not return his property, what measures should be taken? Whether or not is the creditor entitled to demanding the third to return his property, and such problems? There are many statements on character of Cancellation among scholars result in disunion of suitable for Cancellation effect in juridical practice and impact on fulfillment of Cancellation legislative purpose. On the basis of the nature of the definition of Cancellation, we determined the effectiveness of the exercise of the right to revoke. Specifically, form for the free transfer of property as a gift and low-cost housing transfer, after the exercise of these two types of Cancellation behavior which involved the effect of Cancellation, it discuss combined with specific juridical case and defines the effect of Cancellation to help the judicial practice.In addition to the introduction and conclusion, this paper consists of four parts.The first part is the meaning and function of Cancellation system. Through origin of Cancellation system, the significance of Cancellation system and their functions are pointed out, and thus the importance of system of Cancellation is tangible.The second part is discussion on the nature of the Cancellation. For the nature of Cancellation, there are claims, formation of the right, compromise and responsibility four main versions. Four theories have flaws, but I tend to compromise, and believe that it is in favor of recovery of the responsible property of the debtor, thus more in line with the legislative tenor of debt preserving the system.The third part is the effectiveness analysis of Cancellation in the behavior of gift. Leading through a judicial case, in the general behavior of the gift, the beneficiary has been transferred to the debtor and property ownership. After creditors rescind the donation act, he is entitled to require the beneficiary to return the property. However, in the case that the donated property to be transferred to a third, the gift only if the beneficiary will be free transfer of property to a third person or with a third low-cost transfer of malicious collusion, the creditor requires third party to return the donated property to the debtor only after the revocation of the gift. At the same time discussed the creditor the right to revoke occurred when competing with the contract null and void, unless you can prove that the contract actually harm national, public interest and subject to other than creditors the interests of third persons caused by the contract invalid, the court may give priority to the contract null and void, otherwise the people's court shall be ruling party according to the claims. In the public service, moral conduct in the gift, the paper believes that when exercising the withdrawal the creditor should consider two angles that the enforceability of property and the fairness of the parties Specifically, the debtor has entered into a grant contract with the beneficiary, but the gift ownership of the property has not yet transferred, the creditor may exercise its right of revocation at this time. While if the gift title to the property has been transferred, the behavior of the gift may not be revoked in general; but if the debtor and the beneficiaries are malicious, then the creditor may rescind the donation act.The fourth part is the effectiveness analysis of Cancellation in the behavior of ultra-low-cost transfer of housing. The situation that disposition of the property involved in the case of housing, especially in the behavior of low-cost transfer of housing, the transferee has been the case transferred, bur the creditors request the assignee to return the housing. The paper argues that creditors can not require revoking the registration of property rights through the decision to withdraw, but can take alternative approaches:in the revocation of the housing transfer contract between the debtor and the assignee, People's Court should enter a judgment on the ownership of home. Then creditors can request according to judgment the executive authority for the resumption of housing registration. Also pointed out that related litigation system and perfect Register Administration System are needed to achieve the right to return of Cancellation. For the transferee of the house, and for the transfer case, if the assignee is turning people with malicious, and the assignee and the person is turning the case of malicious collusion, this time the effectiveness of Cancellation and transfer right people. Creditors have the right to directly request the transfer to return the housing to the debtor. Specifically with reference to the alternative approach above mentioned that the transferee transfer.