Study On The Cancellation Right Of Creditor

Human society's division of labor has promoted the development of economy. The exchange of commodity becomes much more frequently as a result of the advanced development of commodity economy society. However, behind the prosperity of commodity exchange, many people who stem from various reasons have destroyed the transaction security intentionally or accidentally, and have hindered the market economy development to certain degree. This needs integral rules or stipulations to safeguard the security of commodity exchange and its credibility thus has caused the existence of cancellation right system.Our country officially stipulates the system of creditor's cancellation right in the Contract Law in 1999, and makes some additional regulations in the Supreme People's Court Certain Questions Explanations about.But because Law of contract and Explanations about Law of contract stipulates quite briefly about the cancellation right of creditor, and theorists who have different opinions with each other about correlation content have not achieved the relative unification of understanding, which has influenced this system to some degree, therefore the author selects this topic to do the preliminary study.First part, characteristics of cancellation right has been analyzed. For it, various countries have different theories, mainly on three kinds which are right of requirements and right of forming as well as eclecticism. Three theories have the different viewpoints respectively. Three theories all have the flaws, and they aren't able to make the appropriate explanations. The author prefers to revise by the third viewpoint of right of forming so that removes the limitations of Japanese law"the effect invalid responsibility law"which doesn't present in legislation of our country, enabling it to achieve the similar effect as the responsibility law, equal to after the action of the cancellation right by the creditor, enforcing the benefit directly.Second part, cancellation sues of the litigant has been discussed. The plaintiff of cancellation sues should be the creditor. As for defendant, there is a difference because of the difference on the cancellation right of the creditor. The author believes that the defendant on cancellation sues of the creditor should be concerned the artificial defendant by the behavior, the litigant having the beneficial relations with the case may be named as third person who doesn't have the independent right of requirements to participate in the lawsuit.Third part, the problems of the specific creditor's cancellation right has been studied. As for it, there are mainly three theories: positiveness, negation as well as limited positiveness. The author believes that, the limited positiveness is not only advantageous to protect creditor's interests, but also in correspondent with the real right principle that means the item belong to the person who is holding it in his hand, furthermore, it is rather helpful to maintain the maintenance transaction security and the free competition system. Moreover, the author also guarded against the real estate dual business by proposing the legislation suggestion, namely that our country should have established the registration system on advance notice for the real estate and acknowledged the creditor's rights real right which is based on tenure.Fourth part, the expanded usage of the creditor's cancellation right has been analyzed. Our national Contract Law the 74th rule, in which the scope cancellation right was too narrow, is disadvantageous to protect the creditor's interests. The author has made some useful discussions on the necessity of the expanded usage of the creditor's cancellation right and some questions in practice.