Ownership Rules Of The Twice Assignment Of Creditor’s Rights

Nowadays in civil law, the property nature of creditor’s rights have been gradually strengthened, In order to satisfy the purposes of financing and reclaiming bad creditor’s rights, many countries regulated the relevant legal system of assignment of creditor’s rights. With the guarantee of freedom and security of the assignment of creditor’s rights, twice assignment of creditor’s rights increasingly entered into the view of the civil law academia, and became one of the most contentious issues. Debt relation is an internal relation, its effect also is relative, and it do not involve third person outside the relative relationship generally. On the occasions of twice assignment of creditor’s rights, the creditor’s rights was transferred simultaneously or successively to different assignees. Compared with the contract between the first place assignee and the assignor, the second assignee is the third person outside the relative relationship, and he or she has an adversarial relationship with the first assignee. How to make one self’s acceptance of the assignment against a third person?Debt relation is an internal relation. When it becomes a trading object, the third person outside the relative relationship, such as the second assignee, intervenes. In trading situations, we must provide right representation mode which can be indentified from the appearance for the second assignee who is the embodiment of transaction security. On one hand, the representation mode should have higher credibility, thus can providing reasonable reliance for the second assignee, in order to help deciding whether trading or not, on the other hand, the realization of creditor’s rights relies on the debtor’s actively action, so this representation mode should be known by the debtor, in order to avoid the risk in debt discharge or secondly solvent. Based on this, this paper argues that it is necessary to introduce public institutions to participate in the manufacture of the notice of assignment of creditor’s rights. Only in the way can we conformed the date of the notice, and can its assignee against other assignee and obtain the completely rights.This Paper consists of five chapters to spread out discussion:The first chapter is introduction. It quotes typical cases of the twice assignment of creditor’s rights in the judicial practice in our country, and led to that it is necessary to discuss the ownership rules of the assignment of creditor’s rights.The second chapter is about the comparative law study of the legal form of creditor’s rights. This part firstly analyzes the differences in legal form of creditor’s rights between Germany, Taiwan, and France, Japan and other countries or regions. Next to classifies and analyzes the legal form of creditor’s rights in Chinese civil law academia, to further clarifies the legal form of creditor’s rights, and lay a foundation for the ownership rules of the twice assignment of creditor’s rights.The third chapter is about the comparative law study of the ownership rules of the twice assignment of creditor’s rights. This chapter discusses three main legislation models, their difference and their problems.The forth chapter is about the legislation which we should adopt. This part bases on chapter three and four, it analyzes points of view existing in Chinese civil law academia, and argues that we should introduce public institutions to participate in the manufacture of the notice.The fifth chapter is a combination of the relative rules in Japanese civil law and the relative cases in our judicial practice. This part discusses how to construct special notice form in order to against a third person, and mainly discusses the institutions of the notice certificate and its effect date.