Research On Legal Constitution And Validity Of The Assignment Of Creditor's Right

The development of modern commodity economy and market exchange objectively calls for a freer flow of the creditor's right and necessitates the securitization of the creditor's right.Although the Contract Law has made a breakthrough in this, the stipulation of the right assignment is too general and can not meet the increasing demand for the creditor's right circulation under the commodity economy system. In light of the financing function of right assignment in modern society and its practical operation,this thesis compares legislative modes of other countries about this and explores the construction of the right assignment system and its application in China.The assignment of credit is defined as quasi-juristic act of real right or the result of a basic contract in different countries.Because there is no fulfillment,the independence and abstraction of the assignment of credit are not sure.Considering the above and China has adopted claim formalism mode on the passing real right,the assignment of credit can be defined as a change of right.The validity of assignment includes the internal validity and external validity.The provision that the credit has transferred from creditor to the transferee,but the transfer shall not bind the debtor without notification doesn't conform to logic,but it meets the need of bulk credit assignment,undisclosed factoring and successive assignment.The external validity is distinguished as validity to the debtor and validity to the third party.As to the effectiveness of notice to debtor, there aren't great differences between legal system of Germany and France, but 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 assignee should have the right to notice,and notice by assignee should have some specific requirements.As to the validity to the third party, it mainly concerns the problem of double assignment and the priority right of the assignee and the other creditors.There exists main differences in the effectiveness of notice to the other parties except obligor, which leads to the doctrines of establishment of contract, notice and registration.The author holds that the doctrine of establishment applies to the double assignment and the doctrine of Bankruptcy code applies to the priority right of the assignee and bankruptcy creditor.