My Opinions On The Creditors’ Right Of Rescission On The Contract Law

The creditors’ right of rescission on the contract law is a part of the debtpreservation system, which gives creditors the right of appealing to the people’s courtto rescind the debtor’s fraud behavior. Its purpose is to protect the interests of creditorsbetter. This right initially created by the ancient Rome legal officer Paulus, and hasbeen inherited by approximately all the laws in the continental legal system, with itsown characteristics of development in different economic regions. China’s legislativeprovisions for the creditors’ right of rescission on the contract law can be traced backto the "Republic of China Civil Law". The current legal system mainly contains the"Contract Law of the People’s Republic of China" and "the Interpretation of theSupreme People’s Court on Several Issues concerning the application of ’of thepeople’s Republic of China Contract Law (Ⅰ),(Ⅱ)". But these Regulations are stillnot perfect. There are a lot of controversies to the characteristics, components, systemdesign and other content of this right in the academic circles. In judicial practice,many of the complex problems are lack of the solution basis, which leads to thephenomenon of different courts owns different opinions. Therefore, this paper hopesto analyze the development and the theory of this right, conducts the research to theright, and finally solves the puzzles in judicial practice, finding a balance between theprotection of creditors and maintaining market order stability.The first chapter of paper provides is an overview of the creditors’ right ofrescission on the contract law, including the concept, origin and development, variousregulation in the countries and regions all over the world. It helps us to understandand distinguish the legislation of various countries（regions） mainly through clarifying the concept, The second chapter is about the characteristic of the creditors’ right ofrescission on the contract law. In this chapter, several common theories in academiccircles has been enumerated: the right of action, the right of formation, the theory ofresponsibility, the right of claim and the theory of compromise, with an analysis foreach other. The author hold the belief that among all theories, the theory ofcompromise is most suitable. It can not only solve the problems of qualitative analysisto the fraud behavior, but also solve the regression problem of escape property. Thethird chapter of this paper is to analyze the elements of the creditors’ right ofrescission on the contract law. This chapter lays the foundation for the later studythrough the analysis of objective, subjective and other elements. The fourth chapter ofthis paper discusses some procedure problems in the lawsuits, including the actionstatus arrangements of the plaintiff, defendant, and the third person, as well as theterritorial jurisdiction, subject of litigation, the burden of proof, limitation of action,decision binding force, and the legal fare. The fifth chapter compares the creditors’right of rescission on the contract law with several similar legal concepts, such as thecreditor’s right of subrogation, the revocable right of a voidable contract, and the rightof revocation in bankruptcy law. On the basic theory researchs of the previous fivechapters, the sixth chapter analyzes some judicial cases, pointing out the existingproblems in the judicial practice, and try to solve the problems exsit. The seventhchapter is the conclusion of this paper, including some core views of the author.