Creditors The Right To Revoke

This thesis firstly explains the origination and the historical development of the obligee's cancellation right and then analyzes the subjective and objective essential elements of the exercise of this right and the problems arising there from combining with the country's current legislative situation,the related provisions of the country's Contract Law and judicial interpretation.Meanwhile,with reference to the country's judicial practices and the related provisions of the civil law system,the author makes suggestions on its own.This thesis consists of three chapters.The first chapter introduces the origination of the cancellation right in the ancient Roman Law and the reception and development of the right in civil law system.Then,the author analyzes the country's current legislative situation after simply reviewing its law-making process of the cancellation right system.The second chapter studies on the essential elements of the exercise of the cancellation right which differ between obligor's free behavior and compensatory behavior.The former requires merely the objective elements while the latter requires both the subjective and objective essential elements.As for the criterion of malice in the subjective essential elements, given the value of the cancellation right system,the author agrees with the "cognition perspective",one of the two different criteria with the "expectation perspective" as the other one.The third chapter states how to exercise the cancellation right, specifically including the scope,the exercise term,the parties in the litigation and its legal effects.The right shall be exercised through litigation and its scope is limited to the obligee's rights enjoyed by the creditor.The exercise term's nature is scheduled period.As for the legal effects,there are two different theories,the absolutely invalid theory with which the author agrees and the comparatively invalid theory.This thesis,under the absolutely invalid theory,analyzes the effects on the obligor,the beneficiary,the assignee,especially on whether the creditor is entitled to seek preferred payment of its obligee's right.The author thinks that the traditional theory gives too much emphasis on the equality of the parties, while slightly ignores the obligation protection value of the cancellation right system.In order to realize the obligation protection value,it is better to vest the creditor with the priority over payment.