Study On The Delay Of The Creditor And Its Consequence

At present,the civil law in our country has not stipulated the system of delay about the creditors,but the law made clear provision on the delay of obligors and scholars researched more on the latter problem.The legal make more regulation on the debtors which on the other hand,reflect our country pay more attention to the protection of creditors.which is relevant to the right standard of our present civil law,so the protection about creditors interest is the starting point and foothold of many formulations in our country.the author think that the legal protect the creditors is necessary but the law should also take the interests of debtors into account.because the fair principle is an important principle in the civil law,the creditor’s and the debtor’s rights and interests should be equally protected.The specification of the delay about creditor system which can reflect our legal consideration on the interests between two parties,so as to seek the balance of interests of all parties to maintain the social justice.which can also maintain the principle of good faith and fair principle.at last,the law need make clear provision about the delay of creditor system in order to adjust the real cases.The domestic scholars study the problem of delay about the creditor mainly relying on the outside law. Scholars analysis China’s"contract law"relying on extraterritorial system which will inevitably cause many problems, including the nature of "acceptance",which still exist many differences among them.as to the nature of acceptance, the author believe that it is the creditor’s right in principle,in exceptional circumstances it can be defined as obligation to the creditor.The author start with a case in this paper,based on the extracted problems in the case and combined with China’s"contract law" article70^ article 101,the author study the conception of the delay of the creditor, the nature of it, the elements of it and legal consequences.In the section about the nature of the delay of creditor,the author emphatically start from the obligation in the civil law and research the property.which is the main part of the thesis.the author analysis the connotation and nature of obligation, the obligation in China’s civil law has two kinds of form, one is the generalized obligation, which is the law behavior pattern;another kind is the narrow sense of obligation,which is the mandatory legal patterns of behavior,it exists objectively and the parties must obey it,otherwise they will be punished.In the section about the elements of the delay of creditor,the author emphatically research the subjective negligence of the creditor,whether it is the element of delay of creditor.the author think the delay of creditor is a fact of performance barriers,we should study from the objective angle in large degree.we should not consider the subjective negligence of the creditor in principle,when we make the acceptance as obligation we can consider the subjective aspect.In the section about the legal consequences of the delay of creditor,the author emphatically research whether the debtor can exercise the right of counterplea.at last,the author put forward suggestions on the delay of creditor system.