Pilot Research On The System Of The Repealing Right Of Protection And Its Perfection

The repealing right of protection is also called the abolition of the right of litigation or the repealing right of the creditor,that is,the creditor could apply the court to repeal the behavior of the debtor who applies the property right improperly to damage the creditor's right.As a breakthrough and innovation to the debt's relativity principle, The establishment of the repealing right of protection has significance in ensuring paying the debt and protecting the realization of the creditor's right and encouraging the development of the commodity economy.This system originated from the law of ancient Rome.Since its establishment,jurists have different explanations.Meanwhile,in order to avoid that the creditor applies the repealing right of protection improperly to undermine the safety of transactions,the jurists also required the important component parts and limited strict conditions of applying the right.In march 1993,"The Contract Low Of The Public Of China"(short for "contract law" below) required the repealing right of protection in special provisions at first time.Responding to this,the jurists in china began to give more and more attentions and studies to the system in theory.However,the judicial practices in recent years showed that the creditor applied less the repealing right of protection to ensure the realization of the creditor's right.So the system didn't play the role expected at the beginning of the legislation.This appearance encouraged the author to review and consider this system carefully.Begun with the establishment of the repealing right of protection,the article recalled and elaborated the establishment,nature,important component parts, application and effectiveness of it systematically,and interpreted the system of the repealing right of protection,and analyze the chief problems existing in the system.Two problems of the system are pointed out specially,one is that the creditor would not like to apply the repealing right of protection in judicial practice,the other is that "circular debt" is easy to come into being as the debtor would not ask the third person to return the property after the creditor applied the repealing right. To the above problems,two suggestions are made.One is that the creditor applying the repealing right should have the priority of refund towards the other creditors,and the other is that the right forcibly obtaining the property should be given to the creditor according to the rule of law after the creditor applied the repealing right.Meanwhile,it should be regulated in the law that the creditor could obtain the property carried out forcibly as a beneficial supplement to the system of the repealing right of protection.