A Study To The Effect Of Assignment To Third Parties

With the significant feature of property right, creditor’s rights have acquire a superior status in the property law system. It plays an important role in the modern economic life and decides the very significance of theoretical research on the assignment of creditor’s rights. In the transaction, people pay more and more attention to dynamic transaction security, reflected on the balance of benefit between the debtor and the third parties. The study to the effect of assignment on third parties is originally about the rule of taking effect on debtor and the priority among the third parties.In the development history of the assignment of claims system,many countries have made it becoming perfect, our country is expecting such a process. This article is mainly about studying on the effect of assignment on third parties, trying to introspect our national legislation and jurisprudence when comparing it with other countries’. Otherwise, this article is divided into four parts, amount to about thirty thousands words.Part I is putting forward the problem. The author references a specific judicial case, to introduce the facts of the case after. Under this section a brief description of the case finds that the truth of the case is the effect of assignment to third parties. On this basis, launching the following three parts.Part II discusses the effect of assignment on debtor. This part is the specific analysis on the effect of assignment on third parties. Firstly, starting from the jurisprudence basis of the system design, analysis the cause and necessity of protection of debtor. Secondly, introduces the different legislation modes of effective time on debtor, then pointed out that the rule of notification has great significance to our country. Thirdly, for the notice is the way to make the effect of assignment on debtor, this article discusses the nature of notice, further discusses the effective time of notice; claims the main body of the notice and the effectiveness of the third person. Finally, this article analyzes the effect on the debtor, on the basis of distinguishing the situation whether the debtor has received the notice or not. If the debtor hasn’t received the notification, the legal effect for him is relatively ineffective, otherwise, if the debtor has paid for the creditor when he hasn’t received the notice, it is effective for him. In contrast, if the debtor has received the notice, he received the counterplead right and right of offset. This article discusses the arrangement of counterplead right and its effective time, furthermore, analyzes the use of the right of offset on the different circumstances, and pointed out that the lack of protection of the interests of the transferee of the Contract Law.Part III is about the effect of assignment on third parties except for debtor. This part discusses the arrangement of the third party, introduces the provisions on the scope of the third party of the foreign legislative example, and combined with China’s judicial practice and legislative situation, this part found out some patterns of the the third parties. Secondly, combined with the foreign legislation, this part analyzes the effective time for the third party, produces the conclusion that the effective time on third party is that of establishment of the contract of assignment. Finally, this section focuses on the effect of several common prolems of third parties in China’s judicial practice, the first is the effect to the third party in the continous assignments, on the basis of analyzing the foreign legislation, and in the consideration of China’s judicial practice, put forward the debtor may avail himself of the Bona Fide Acquisition(BFA); the second is the effect to the third party in the successive assignments, this section bases on the comparative method of observation, combined with the reality of our country, pointed out that the rule of notification has great significance to our country; the third is the effect of the assignment on the distrainer and the creditors of a bankrupt estate who are against the assignor, this section is on the foundation of the comparison analysis of foreign legislation, put forward the notice of assignment as a possible standard to deal with the problem.Part IV rethinks the case raised at the start of the article. By the analysis of Part II and Part III, this part is trying to answer the questions. Combined with the analysis of problems in the case, and the problems found in the theoretical study, the author puts forward some legislative suggestions, including the notice of assignment, to make aware of the protection of the third party, and set the rule of dealing with the priority among the third parties.