Research On The Comparison Of Chinese And Korean Revocation Right Of Creditors

Recently, with the fast development of Chinese import and export trade, the business communications with neighbor countries become more frequent. As one of China’s trade partner, more than half of the goods trade market has been occupied by China. When President Xi visited Korea in 2014, they admitted that China has been the biggest trade partner and held the most export market of Korea. Increasing commercial transaction leads to more trade conflict. Although CISG is the main legal basis when dealing with transnational business dispute, it lacks rules to resolve some legal problems with Asian characteristic involved in the dispute. The creditor’s revocation right system in the debt preservation system is one example. The creditors from both countries might become helpless when suing transnationally because no correspondent international law can be applied and they are not familiar with the other country’s law, which will decrease the efficiency of lawsuit and be harmful to recover debts. The famous scholars from both countries have researched and analyzed the theory and cases on the revocation right of creditors system of their own country before. But no one has made comparison research yet. Therefore the author analyzed the similarity and difference of creditor’s revocation right in Chinese and Korean law in the hope of offering correct legal basis and instruction for both creditors when claiming for right.In the first part, the author introduced the resource, development and dispute on the nature combining the theory of Civil Law. Secondly, the author compared the subject and object, the way, scale, effect of performance of the creditor’s revocation right based on the legal provisions. In the third chapter, the author concluded the main perspective and practice of subjective and objective constitutive components from the cases judged by the supreme court of two countries. In the second and third part, the author compared each component one by one and analyzed the reasonableness and unreasonableness of two countries’ regulations and provide litigation strategy for creditors when suing in the other country.Both countries require that the creditor file a lawsuit to court as as the plaintiff to perform his right, that the court withdraw within the debt amount of the plaintiff,that the scheduled period be one year. For the parties of the lawsuit, what they should pay attention is the selection of defendant. In China, the defendant is the debtor for sake of minimizing the break of the relativity of debts. While in Korea, the defendant is beneficiary or rebuyer to ease execution. Furthermore, as for the burden of proof, China insists that the plaintiff prove the malevolence of each party. While Korea only requires that the plaintiff prove the malevolence of debtor and presumes that beneficiary and rebuyer have malevolence. The author holds that China may take the Korean regulation for reference, such as enlarging the range of application from contract law to the whole civil law area, extending the revocation scale from the transaction between debtor and beneficiary to the transaction between beneficiary and rebuyer, refining the type of fraudulent act and thinking about whether the debtor carries the purpose of refinancing. In Korea, the practice of not withdrawing the act of the debtor cannot punish and warn the debtor so as to prevent this kind of behavior and may result in the chaos of transaction order. So the practice of invalidating debtor’s behavior directly may bring about better social effect.