Creditor To Revoke The Right To Legal Issues

This thesis consists of four parts: beginning with real cases, the first part brings out the realistic predicament that the system of creditor's rescission right is confronted with; the second part introduces the historical evolution of the system of creditor's rescission, analyzing its legislative purpose; the third part studies the practical disputes in the system of creditor's rescission right; the fourth part sets forth some legislative suggestions for the system of creditor's rescission right.The first part briefly presents the details of real cases and the main points of the judgments, summing up the realistic predicament confronting the system of creditor's rescission right, i.e. the loopholes existing in the system which lead to the creditors'inability to claim rights through exercising the rescission right. With analysis of cases the following pressing topics concerning creditor's rescission right are advanced: what is the legislative purpose? What are the factors standing in the way of the system's start-up? What are the elements that make up the system? How to identify or negate the transference with consideration which takes the shape of transference for value but to be the one without consideration in essence? What subjects are to be regulated by the creditor's rescission right?The second part in general introduces the historical evolution of the system and gives a brief analysis about the nature of the said system, maintaining that the nature of the system be the right of formation and illustrating the corresponding legislative purpose. It is generally said that the original purpose of the system of creditor's rescission right is to protect the overall interest of the common creditors rather than particular interest of individual creditors, nevertheless this thesis holds that the legislative purpose of creditor's rescission right system should be built on the basis of the custom and social relationship existing in Chinese society and the final foothold should rest on the protection of creditors who actively exercise their rights. Furthermore, in this part there is also a comparison between the legal interests of maintaining trading order and the legal interests of fair and honest dealing, pointing out that the choice of legal interests should lie in the fact whether there is fraudulence or subjective"wrong"existing in the transaction.The third part, in the light of the confusions arising in the legal practice, briefly introduces the main types of rescission right in civil law and makes a distinction among rescission right of creditors, rescission right of revocable contract and invalid contract, looking further into the problems existing in the idea that the exercise of the rescission right of creditors be solely applicable to the contractual obligation and bringing up that the exercise of the said right should be limited by the scope of rights that creditors actively exercising their rights claim rather than by the rights that they enjoy. As for the subjects of rescission right, this thesis identifies itself with the general idea about the determination of defendants in the suit of rescission right, dissecting the legal status of the transferee and the acquirer. In the meantime, there is an elaborate analysis about the problems below: whether the potential creditors can exercise rescission right, whether the creditors exercising rescission right are entitled to priority of payment, the judgment of the"wrong"in creditor's rescission right, the practical problems of the transference with consideration, the distribution of the burden of proof in right of rescission cases, the relationship between creditor's right of rescission and right of subrogation .The fourth part puts forward some legislative proposals, i.e. the applicable field of creditor's right of rescission shall be enlarged to involve all the obligations; the connotation of the subjects in the legal relationship of creditor's right of rescission system is to be enriched while it's denotation is to be expanded; the statutory standards of"wrong"are to be further improved, increasing the burden of proof for the obligator and appropriately enlarging the judge's right of discretion; creditors exercising right of rescission are entitled to priority of payment, which will motivate creditors to exercise their rights actively; the suit of right of rescission and the suit of right of subrogation should be merged in order to increase the proceeding efficiency and save the litigation cost and judicial resources.