Research On The Creditor’s Canceling Right In The Period Of Executory Contract

According to the principles of contract law, a lawfully established contract should be protected by law.It should be so whatever is in the period of executory contract or effective contract.Culpa in Contrahendo protects the contracting phase, and effective contract is protected by liability for breach contract. But there is no consensus in the academic circle to protect the executory contract, so that the period of the executory contract is a weak creditor protection zone. During the contract is not in force, the debtor transfer the property to damage the interests of the creditor. To cancel the contract or to invalidate the contract are not the best way to protect the interests of creditors. Especially, creditors for unilateral contract (such as guarantee contracts) maintaining the contract in force until fulfill is to protect the best ways.During the contract is not in force, the creditor has the right to revoke behavior of the debtor’s fraud victims. This conclusion is based on the following theory:firstly, the contract with the general requirement is a valid contract in force, and the parties hereto has accompanying obligations without prejudice to the claims of creditor and should maintain validity of the contract in accordance with the law. secondly, it is should be characterized as the expected defaults that the debtor’s behavior of transferring property damages the interests of creditor in the period of the executory contract, and the creditor revoking right may be characterized as liability for breach of remedy. Thirdly, in the period of the executory contract, the creditor has the right to preserve the creditor rights. During the same time, and it is certain that affirming the creditor’s right to revoke the contract is to protecting the creditor’s rights, to respecting for the will of the parties and the principle of good faith and the prohibition of abuse of rights principle.There are three levels of discussions from the legal requirements and the period for exercising right as well as the legal consequences for creditors exercising the revoking right in the period of the executory contract. During this period, creditor’s revoking right should meet the following requirements:the first is the subject element, and the creditor under the premise of the elements of a valid contract, may exercise the right of rescission; the second is the subjective element, and the subjective state of mind of the parties adopts conceptualism; the third is the object element, and legal act is the object of the creditor revoking right; the fourth is objective element, revocable disposition of property behavior occurs before the establishment of debt or debt to be compromised. For the duration of the exercising right, the creditor may exercise their rights both during the period of the executory contract and after the commencement of the contract, provided that such a choice is not more than one year or five-year time limit. And, for the right exercising consequences is divided into two parts, the effectiveness and breach of contract. In addition, because it is typical that the contract is not in force during the period of guarantee, taking it as a specific example analyzes creditors revoking right.Finally, to improve the system of creditors revoking right, affirming creditors revoking right in the period of the executory contract, must be clear "legally valid claims" concept, and the principle repayment as "storage principle" as well as the burden of proof and the allocation of legislative system, while, in the future the Civil Code should also require the creditor revoking right the contract in the period of the executory contract.