The Research On Creditor’s Rights Transfer Of Japan

Nowadays, the asset fluidization is more and more high. The practice of transferring the real right to realize the purpose of financing and guarantee that the traditional civil law generally recognized have already can’t meet the need of reality. The creditor’s transfer proceedings plays a more and more important role in the enterprise financing, which is called "creditor’s rights flow change" trend.At present practice of creditor’s rights transfer are constantly emerging in our country, some law also have certain regulation. But there are the basic problems in the creditor’s rights transfer, like the nature of creditor’s rights transfer, the main body, the nature, the legal effect of the notice, the ban agreed between the parties, and the processing of repetition transfer problems, the special problems of creditor’s rights along with the development of the times, during which different opinions all exist in practical and theory discussion.For these problems as well as creditor’s rights transfer examples emerging in our country, the provisions of the civil law and the contract law is too brief, and the court’s discretion is lack of powerful legal or theory basis, which we can say that this is greater blank field. By contrast, Japan civil law have more detailed regulations, and the case and theory have gone through years of detailed discussion, especially,"about defense to the public in civil special case of the movable property and creditor’s rights "(abbreviated as the "special case law") introduced in2005provides a new approach for the qualitative of information and promise, the determination of legal effect, and the right ownership of the repetitive transfer.This paper briefly introduces the academic circle’s attitude above the problems in our country. Based on Japan’s theory evolution and case attitude evolution, this paper especially elaborates the right ownership rules of creditor’s repetitive transfer, and introduces the legal effect of the creditor’s rights transfer noticication and confirmation in Japanese special case law. At the same time, the transfer of the future claims also gets more and more countries recognition. However, there are many uncertain factors about the creditor’s future rights,such as, whether the creditor’s right to transfer namely for the debtors, amount of claims, the creditor’s time limit can be determined, as well as how to deal with the actual transfer problems, for which the Japanese academic circle and practical circle also have accumulated some reasonable processing rules. All of this processing has reference significance for our country practice. Especially at present, the Japanese civil law is going on the revision process, and the creditor’s rights transfer part is also having significant change. For example, the removing of no objection commitment, in the future whether creditor’s rights to be written into the civil law as well as integration problem beteen civil law and the special case law and so on. The Japanese academic circles is in a heated discussion, which also will provide the reference guide for our country’s relative legal system construction.In a word, it has the vital significance for our country’s legal revision and practical processing to research the Japanese relevant regulation of the evolution and pay attention to the latest trend of Japanese civil law correction. However, the two countries are different in social system, economic situation and the legal construction.We must have the option of screening for reference on the basis of serious reviewing whether applying for our country.