Research Of The Creditor's Right Of Rescission

The Creditor's Right of Rescission is an ancient obligation-preserving system, which has been stipulated by the Contract Law of China for the first time. This dissertation begins with the concept, nature, and the theoretical basis of the Creditor's Right of Rescission of the nature of the law abroad and in the district of Taiwan, and analyzes the subjective components of valid the Creditor's Right of Rescission the processes and effects in performing the Creditor's Right of Rescission. Based on this, and with a combination of the legislative practice in China, this dissertation comments on the legislative drawbacks of the Contract Law of China on the Creditor's Right of Rescission and those of judicial interpretation made by People's Supreme Court, and points out that related legislation in China is too narrow in applicable field, thus failing to solve the problem that need to be regulated by the Creditor's Right of Rescission. This paper is divided into four different parts:Chapter one is the origination and development of the Creditor's Right of Rescission. After briefly comparing different legislation in connecting countries the thesis briefly introduces the origination, development and transplant of our country's legislations had used the experiences of France, Japan, Germany, UFTA and Taiwan district for reference. This chapter key point is the nature of the Creditor's Right of Rescission. There are three main theories on the nature of the Creditor's Right of Rescission, and each has different views in three kinds of theories. The author thinks that the Creditor's Right of Rescission is the right of formation.Chapter Two has studied the subjective and objective components of cancellation right: the objective aspect refers to the debtor implements the debtor knows the behavior will cause it not to have the capital strength discharge of a debt, thus harm creditor's rights, still implements this kind of behavior, indicates sufficiently the debtor has the evil intention; So long as the beneficiary knows that the property is transferred through obviously unreasonable low price, we may infer it have illwill. This chapter also with emphasis discusses the Specific the Creditor's Right of Rescission. The author thinks that the he Specific creditor may Debtor's Behavior.Chapter three is that how to exercise the cancellation right. Mainly analyzes the method, the scope, the body of litigation, the deadline of cancellation right. In proceeding, the acts party is to be the defendant, while the third party who has interest is verdict removed litigation is to be the one who has no independent request. Simultaneously has analyzed our country law stipulation insufficiency. Chapter four obtains from the Potency general theory of the Creditor's Right of Rescission. The author thinks that the Potency general theory of the Creditor's Right of Rescission is absolutely invalid. The chapter This chapter of key point is the Potency of the Creditor's Right of Rescission to debtor beneficiary and the second beneficiary. The author thinks that the Creditor can not be made directly to the beneficiary to return property or benefits and the Creditor should not have compensation priority.