On The Creditor The Right To Revoke System

The cancellation right of the obligee originated from the Roman law and is referred to as 'actio Pauliana' or 'action Paulienne' in the literatures on the Roman law. It is stipulated in Article 74 and Article 75 of the Contract Law in China for the first time. However, due to the negligence in the process of law-making and the absence of the pertinent systems, the researchers in this field hold divergent opinions on the issues related to it, which makes it hard to put this system into the judicial practice. This system, due to a variety of insufficiencies, embodies more indicative meanings than the realistic effects. Consequently, as far as the jurisprudence, legislature and judicature are concerned, it is essential to make a research into and discussion about such system, point out its insufficiencies, put forward suggestions for law-making and offer some references for the judicial practice.This article includes four parts which respectively discuss in depth and in details the overview of the system on the cancellation right the obligee, the composing essential elements of the obligee's cancellation right, the exercise of such right, the insufficiencies and improvements of the system on such right in China.In the overview of the obligee's cancellation right, the definition to such concept is discussed first of all. It is defined as a right for the obligee, for the purpose of maintaining the liability property, to petition the court to cancel the act conducted by the obligor which infringes the creditor's rights. Then a comparative study is made on the cancellation right of the obligee, the invalidity of contract, the cancellation of right in the bankruptcy law and the other relevant systems to further illustrate the concept of the cancellation right of the oblige. Meanwhile, it has been pointed out that the formation of such system brings perfection to the protective mechanism for the creditor's rights and contributes to the fair trade order as a cornerstone for the performance of the creditor's rights. It is concluded that the cancellation right of the obligee falls into the category of the right of formation after the analysis and comment made on it. A detailed study is made from both objective and subjective perspectives on the composing essential elements of the cancellation right of the creditor. The objective essential elements are composed of the creditor's rights which may be exercised by the obligee, the acts which the obligor has taken to dispose of the property and the consequence that such acts bring damage to the creditor's rights. In addition, an analysis is especially made on whether the cancellation right of the obligee may be exercised or not for some typical creditor's rights which are hard to deal with. The subjective essential elements are discussed respectively from the bad faith of the obligor and the beneficiary in terms of whether it is done with or without reward.The cancellation right of the obligee shall be exercised through petition and there exists some inappropriateness in the relevant judicial explanations on the subject of the petition for the cancellation. It is further pointed out that on the issue of the defendant and the third person with regard to the petition for cancellation, the person who has conducted the acts shall be deemed to be the defendant and the third person who has a legal interest relationship with the judgment result shall be deemed to be the third person without independent petition right. The scope of the cancellation right exercised shall be limited to the creditor's rights of the person who exercises the cancellation right rather than the creditor's rights of all the obligees. The fees for the petition for cancellation shall be charged according to the standard for the cases involving property. The effect of exercising the cancellation right shall have the obligee receive priority compensation directly from the returned property.This article includes the author's own visions on the various weaknesses of this system, analyzes profoundly its legislative insufficiencies and the methods for its improvement, and presents individual opinions on some issues which arouse many disputes but need urgent solution in the judicial practice. A detailed discussion is made on the insufficiencies and improvements of this system from ten aspects including the arrangement of the cancellation right of the obligee in the legislative hierarchy, the altering scope of the cancellation right, the priority compensation right of the person with the cancellation right, the stipulations on the assignee, etc. This article finally summarizes this study and designs twelve specific clauses for the cancellation right system, which embodies the results of this study.