An Analysis On The Bone Of Contention In Creditor's Right Of Claiming Cancellation

In the world many countries have already adopted Creditor's the system in right of claiming cancellation. Our country's Contract Law absorbed the efficient experience of other countries'law which set the regulation of creditor's right of claiming cancellation. But in terms of the examination of the present law, there are few pieces of regulation on creditor's right of claiming cancellation, which is so easy and hard to deal with the confused relationship between loaner and debt. Law set creditor's right of claiming cancellation at contract duty and special sponsion so as to revoke the action when creditor will be harmed by false pretences under a certain condition and recover the property of creditor. To maintain the strength of each other has a significant meaning on protecting general benefit of creditor. Before the Contract Law of the People's Republic of China was promulgated in 1999, the few pieces of regulation on creditor's right of claiming cancellation appeared in the judicial explanation. In 1999 the Contract Law of the People's Republic of China uses foreign countries'advanced legislation experience for reference so as to adopt creditor's right of claiming cancellation and strengthen the protection for creditor's rights, as well as fill in a great empty in legislation of our country. The establishment of the system plays an important role in terms of protecting the benefit of creditor and reducing the risk of economic communication as well as forming a standard market economy. But because the system has just established in our country, and the rules of Contract Law is not very operational and still has difficulties in judicial practice. Therefore it is important to have study of theory on creditor's right of claiming cancellation.The article starts from analysis of the nature of creditor's right of claiming cancellation, the exertion of specified objection of creditor's right of claiming cancellation, the sureness of defendant in creditor's right of claiming cancellation, the potency of creditor's right of claiming cancellation, analyzes the creditor's right of claiming cancellation, which is considered as one of the ways of protecting credit's right. This thesis is divided into four parts.The first part is the nature of creditor's right of claiming cancellation. First, the part summaries the nature and theories on creditor's right of claiming cancellation. There three thoughts on the nature of creditor's right of claiming cancellation. 1. The first thought is request's right. It is divided into law ruled, infringe action and inappropriate benefit. 2. The second thought is forming right. The thought is on the base of the relationship between withdrawing right and instead right which can be divided into three different opinions. 3. The third thought is halfmeasure which thinks that creditor's right of claiming cancellation may procreate withdrawing harmful action and the request for returning property that has both natures of forming right and request right. Secondly the article analyzes the several doctrines on the nature of creditor's right of claiming cancellation, and on the base of it put forward its own opinion. The article thinks the third thought can be adopted: the nature of creditor's right of claiming cancellation should be forming right.In the second part the article state the problem under the condition of two buyers and one objection the withdrawing right of creditor. The part first introduces the difference on doctrine of creditor's right of claiming cancellation under the condition of two buyers and one objection. Secondly the article analyzes the doctrine in terms of the limitation of creditor's right of claiming cancellation. Finally the article put forward its own opinion: for special objection creditor only lay an emphasis on the disadvantages on material compensation or coercionary performance, and rules both of the two rights at the same time; creditor can choose and be umpire by the court so as to set the regulation of reasonable protection of certain creditor. To give the certain objection of creditor choosing right can't lead to the withdrawing right of certain objection of creditor, and can protect the certain objection of creditor's rights reasonably.In third part, the designate of creditor's right of claiming cancellation. First it introduces that in the nature of lawsuit, three different opinions exist in creditor's right of claiming cancellation. Secondly the part analyzes the three opinions and on the base of it the part put forward the problem on the defendant who is withdraws in lawsuit. The third opinion of the forming right can be adopted. After the creditor is withdrawn by lawsuit, there is no need for him to have instead lawsuit, but to execute the property coercionarily. The opinion is instead of the coercionary performance in fact, so as to avoid the problems of the two opinions mentioned above in theory and practice, which is good for the exertion of rights of creditor so as to protect his credit right and realize the establishment of the system of creditor's right of claiming cancellation. In the fourth part is the potency of creditor's right of claiming cancellation. First the part summarizes the invalidity and absoluteness. Secondly the part makes commentary analyze on relatively invalidity and absoluteness. Finally the part expounds potency of the creditor's right of claiming cancellation from the potency of creditor, the potency of beneficiary as well as the potency of transferor. 1. In terms of the potency of debtor: once the debtor's action is withdrawn, the action is ineffective, absolutely ineffective, that is to say debtor's action loses the binding force in law. 2. The potency on beneficiary: as for creditor's withdrawing right, it is necessary to distinct the behavior of debtor paid or without paid. When the debtor has paid action, he needs the beneficiary to perform withdrawing right and when the debtor has no paid action, he doesn't need beneficiary to perform withdrawing right. 3. The potency of transformer. Performing the influence on the transformer, beneficiary's duty can be protected by transformer so as to get compensation. When transformer becomes malignant, creditor can withdraw the right on the malignant transformer so as to recover the property of debtor. This time transformer can't ask for compensation. 4. The potency of creditor. The result is that damaged part of the debtor's property was recovered by creditor's right of claiming cancellation, and in terms of the recovered duty property, every creditor has the same right to accept being paid. But the creditor who performs the withdrawing right can't be paid in terms of the property to satisfy the realization of his own debt right.