The Legal Structure Of Assignment Of Claims

The assignment of claims means that the creditor assigns his right to a third person without changing, altering or modify the content of the right. Generally speaking, although it is the general rule of almost all modern jurisdictions that claims could be transferred in accordance with the free will of the creditor, it is not to say that a right could be transferred by the creditor's free will since the concept of claim was invented. With the development of economy, however, people realized the shortcomings of prohibiting the assignment of claims gradually. It is because that the target of transaction has already gone beyond the scope of personal property and real estate and became diversification that almost everything which is of some value could become the target of transaction in the modern economy which is based on money and credit. A claim, with no doubt, also becomes a very important kind of target of transaction for the interest connected to it. So people beginned to make some changes to the rule of prohitting the assignment of claims and finally in fact accepted the assignment of claims. Nowadays, the application of the assignment of claims has surpassed the scope of simple civil transaction and plays an important role in stripping off bad assets, factoring, asset securitization and other banking business.However, such an important rule has not be valued enough or studied enough, so it may be necessary to think over the theory of assignment of claims of our academic circles, make the rule of assignment of claims compatible to current laws and suitable to the requirement of current situation.This paper used a historical analysis method to study the development of the rule of the assignment of claims and analyses the value of the rule, used a comparative analysis method to analysis the rules and theories on assignment of claims of civil and common jurisdictions, and analyses the rules and viewpoints of our country on this, on the foundation of which discussed how to stipulated the model of the assignment of claims which is caused by a assignment contract. This paper is based on the application in social life and the requirements of which.The content of the first part of this paper is about the development of the rule of assignment of claims and its use in the modern life, shows the reasons for making the rule, which give some background information for the discussion of following parts.The second part analyses the foundation of the rule of assignment of claims lies in that a right is valuable and assignable, which make the rule of assignment of claims vary from other rules of obligation, because in other obligation laws, a creditor's right is seen as a payment, which means debtor's action or inaction. But as to the rule of assignment of claims, it means some property which relates to the payment and so is seen as a kind of property, in this sense, the claim in the rule of assignment of claims may be a little more like the property of property law. We can never ignore this point in making the rule.The third part discussed the character of the assignment of claims. After comparative anglicizing the theories of some jurisdictions, the writer introduced two opinions which are of great influence in our country: the opinion of disposition act and the opinion of contract, then criticized the two opinions. At last, the writer made a conclusion that the assignment of claims which caused by an assignment contract could be seen as a kind of contract, but this conclusion only applies to the situation of making contract to assign rights. Furthermore, there is a performance in this kind of contract too. People should take the whole course of assignment of claims as two parts, for part one, a assignor and a assignee concluded a assignment contract, and the assignor is in duty bound to "deliver" the target right to the assignee, for part two, the assignor performances his duty and makes the assignee the new creditor. This performance act could be seen as a factual behavior.The fourth part discussed the performance of the assignment; the writer thinks that there should be some kinds of ways to assignment of claims which could get the effect of publicity. This part first discussed the possibilities of making the notice of assignment play the role of publicity, whereas the notice could only be the bridge to connect the assignor, assignee and the debtor, which could not play the role of publicity, also could not overcome the shortcomings of the traditional opinions. However, limited to the concept of right itself, people can not abstract a publicity stage in the process of transfer. So we can only artificially make a publicity stage from outside—registering, is definitely the easiest way. Then this part discussed the feasibility of making the registering the assignment as the performance way of the effect of publicity. But for the variety of rights, not all kinds of rights are suitable for registering. To be objective, there might not be a way which is suitable for every kind of right's transfer. So besides the logical requirements, the practical requirements are also important in choosing a right way for the assignment of claims. In view of this, why not chose different ways for different kinds of rights? As to the monetary right such as account receivable, it can take the mode of "agreement of assignment and registering", for the unmonetary right, it can take the mode of "agreement of assignment of and notice", because the negotiability of the latter is weaker than the former, accordingly the requirements for the transaction security or publicity are not that strong.The last part brought the idea of reforming the rule of assignment of claims on the base of former discussion. Firstly in the aspect of the target of the assignment, discussed the problems of the contractual limitations on assignments and the assignments of future rights. As to the effect of the contractual limitations on assignments, the writer thought we may borrow ideas for Article 9 of United Nations Convention on the Assignment of Receivables in International Trade, which says that "1. An assignment of a receivable is effective notwithstanding any agreement between the initial or any subsequent assignor and the debtor or any subsequent assignee limiting in any way the assignor's right to assign its receivables. 2. Nothing in this article affects any obligation or liability of the assignor for breach of such an agreement, but the other party to such agreement may not avoid the original contract or the assignment contract on the sole ground of that breach. A person who is not party to such an agreement is not liable on the sole ground that it had knowledge of the agreement." As to the problem of the assignments of future claims, the writer thought that as a financing way the assignments of future claims have a great more advantages than the assignments of existing claims. On one hand, it could make the assignor maximum get funds, on the other hand, it could greatly facilitate the trade and reduce the cost of it, so the assignments the future claims should be granted. The following part concretely stipulated every party's claims and obligations in the course the assignments.