Research On The Protection To Debtor In The Alienation Of Credit

The thesis is about the protection to debtor in the alienation of the creditor's rights according to the structure in law of China.The alienation of creditor's rights make creditor's rights can be transferred freely. At the same time debtor may be endure much risk. It is not justice. How to protect debtors'interest not be infringed is a worthy issue.First chapter: The relationship of the alienation of creditor's rights and the protection to debtor in different structures in law.According to whether admitting disposing act has the nature of independence, we see the alienation the creditor's rights present different law frames. Firstly, in the frame of admitting disposing act has the nature of independence, the alienation of the creditor's rights contains two factors: the effective contract about alienation of the creditor's rights and effective disposing act. According to whether the contract about the alienation of the creditor's rights can affect the efficacy of disposing act, the disposing act is divided into the ones requiring the efficacy of cause and the ones not requiring the efficacy of cause。Secondly, in the frame of not admitting disposing act has the nature of independence, only effective contract about alienation of the creditor's rights can decide the efficacy of the alienation of the creditor's rights. In this situation, notice to the creditor is the condition of countering the creditor.In the countries that doesn't admit disposing act, the force of the contract about the alienation of creditor's right gives rise to the force of the alienation of creditor's right. Similarly, notice to the debtor is the condition of countering the debtor. This is what we think in our country.To see how to protect the debtor's benefit, we should understand that the way to make the protection come true is based on the ground of the forcible contract of the alienation of the creditor's rights and the notice to the debtor. That is why we have highlighted the frame of the alienation of the creditor's rights.Second chapter: the certification of protecting the debtor in the alienation of the creditor's rightsIn this part, I firstly discussed three non-interests: the performance of the debtor can't make sure to give rise to the force of discharge; the division of the alienation of the creditor's rights may increase the performance cost; the alienation in some situation can counter the will of the debtor.Next,I discussed the reason why we should protect the debtor:Its logical prerequisite is the nature of relativity; it is for the need to protect reliance of the debtor, to balance the position of amblyopia, to keep the liberty of the debtor's bargain.Third chapter: the institutional arrangement of the protection of the debtorIn the risk of the request more than once, we should firstly make sure the order of the alienee. After the review to the other countries'law, I educed that we should use different ways in different situation. Secondly, we should produce the prima facie institution, such as prima facie institution of alienation, recall, and existence of the contract of the alienation. The Prima facie institution requires the prerequisite of good faith.In the situation that the creditor's right is divided and alienated respectively, if the alienation increases the debtor's burden, the burden should be mainly put to the alienator, also the burden can be put to the alienator and alienee together.In the situation that the alienation is related to a certain will of the debtor and adhere to the personality of the creditor, the force of the alienation should be put aside.In the alienation of the creditor's rights, the former countering and offsetting rights should not be decreased. What's more, the relative rights contain ones out of the in-coming of other things. The way to use the countering rights can be countercharge.