Empirieal Study On Effectiveness Of Creditor’s Cancellation Right

What is the value and function of creditor’s right of rescission? It has been unanimously recognized in theory circle.Its value lies in the debtor transfers property to recover the guarantee, realized the creditor’s right can to protect the creditor’s rights and promote market to trade balance.Contract law and its judicial interpretation of this system also made the relevant provisions.But the specific contents of the inspection rules can be found,the content mainly involves the system of revocation right of the estlishment of the subjective and objective elements,the applicable condition,the legal consequences of the debtor’s act is revoked. However,the content of the provisions are very abstract and general, easy to cause the practice operation chaos.Especially on how to scope,, the exercise of the legal consequences are not clearly stipulated, which leads to many difficulties arising in practice.For example,based on China’s relevant laws and regulations, what the legal consequences after revocation is:The behavior of debtor transferring property is invalid from the beginning, but its meaning is not clear.does It refer to the legal consequences?How to realize the legal consequences?what are the differences between legal consequences and legal consequences of invalid contract?How does the creditor can make the assignee return of property, only by the revocation of the right of action can achieve the legal consequences?If the transferee refused to return, that have been lawfully obtained, this situation and how to balance,and so on.These problems have seriously affected the play on the role of the system in practice.The reason is that, decision theory on the creditor’s right of rescission nature, constitutive requirements(such as subjective malicious determined), property assignee is again to dispose of property, how to coordinate the interests of all parties, the existence of large differences between the views of the scholars, resulting in the system by the serious challenges in the judicial practice, but also hindered the realization of the system of legislative purpose.This thesis is composed of four parts: the first introduces two judicial cases, some problems caused by the relevant creditor’s right of rescission exists at present; the second part summarized and classified on the nature of the creditor’s right of rescission doctrine and theory, this opinion, also on the revocation of the right to the establishment of the subject and object concept element according to the empirical analysis; the third part introduces the creditor’s right of rescission revocation status and characteristics of the system of right in our civil; the core of the fourth part and the fifth part series article, combining with case analysis, how to solve the current problems.The first part is the nature of the creditor’s right of revocation and the establishment of the elements. The theoretical circles on the right to revoke the nature view is typically have four types as follows: the formation of right, claim right theory, liability theory and eclecticism, these theories can be summarized in a few specific features of the system. This paper saying is beneficial to the recovery of the liability property, better for the realization of creditor claims to provide sufficient guarantee, in more line with the intention of debt preservation system legislation, to make the readers understand the theoretical basis and the principle of the right of revocation of the running of the system and the basic value.The sceond part is the analysis and integration of the law of our country about the right of revocation of content, different from othes, such as civil right of revocation, the bankruptcy law on the revocation of the right, what the difference between this thesis explores these repeal right and creditor’s right of rescission is, what its function ist, so that our right of rescission to creditors and reflect the function of the system of value can have a deeper understanding.The third part is an empirical analysis of the right of revocation about the donation behavior.The main contents firstly introduces related typical cases and the referee, and then analysis the donation of property of the debtor under the circumstances, the beneficiary with propert ownership, creditor the right of revocation, the legal consequence is whether creditors have the right to request the return of property to directly. But if appear in the beneficiary will grant property transfer price paid for by the way to third people(also known as turning people), so, can creditor request the transfer to return?This thesis presents only when there is subjective intention between the recipient and turn, creditors can ask third people return to protect their own creditor’s rights.At the same time, this part also discusses the couple divorce agreement in children donated interests protection problems. In a word, the right of revocation need think the property and the ability of the parties the exercise.The fourth part is the debtor low punish building, analysis of cancellation right of creditors.In practice, most cases meet a situation.The debtor’s dispose of the property is real estate, if the transferee immovable property transfer real property acquisition, imdattele to housing mortgages to the bank financial institutions set up his right, so, how to coordinate the right of creditors and housing mortgage interest?This thesis argues that the creditor may not require the cancellation of the registration of property rights, but the court in the disposal process as much as possible to achieve both the balance of interests.In the disposal of housing, to repay debt, the remaining section to pay between the or generly creditors according to the debt proportion allocation.At the same time that exercise the right of revocation of the creditor’s priority other common creditors priority for repayment of the views of the transfer of property is lack of legal support.This part discusses to the assignee obtain housing property registration furtherly, housing rental on legal problems how to solve? If the lessee and the effect of human lease contract? Rent vested interests? If the house there are other recessive right of common people, the interests of creditors how to coordinate the balance? Is the priority of tacit co ownership interests? Finally the creditor’s cancellation right system in the core idea is to safeguard the security of transactions should be the maximum possible.