On The Efficacy Of Transference Notification Of Credit In China

With the enhancement of transfer of credit, creditor’s rights transfer system has now been attached more and more attention by various countries. Most of the countries provide for the requirement of transfer notification in the legislation of creditor’s rights transfer system. Thus, the transference notification of credit plays an instrumental role in the creditor’s rights transfer system-its efficacy directly affects the consequence of the entire transfer behavior of the creditor’s rights, and then the realization of the assignee’s rights. However, different national legislation may vary with regard to the mode of efficacy of transference notification provisions. In our country, the efficacy of the notice relies primarily on its efficacy towards the debtor and the third party. Because the current legislation for the efficacy of transference notification of credit is yet to be improved, cases in judicial practice fail to reach concurrence in this regard. In order to better solve these practical problems, this paper discusses, from the perspective of interpretation theory, the effectiveness of the credit notification. Meanwhile, the modes of efficacy, the requirements of efficacy, legal efficacy and other issues are also analyzed in this paper, and reasonable interpretations and recommendations for improvement are provided.Except for introduction and acknowledgments, this paper is divided into six parts:The first part starts with a few questions on the efficacy of transference notification of credit, mainly from the two aspects of the requirements of efficacy and the external effect. For the requirements of efficacy, this paper analyzes respectively from the subject of notice of assignment, formality and time, raising concrete questions such as:whether the assignee can issue the notice, whether the transferee’s litigation and announcement may constitute one of the form of notice, and whether advance notice is effective etc.. For the external effect, the paper deals with questions as:whether the effect can lead to interruption of limitation of action or result in superficial assignment for the debtor’s part; for the third party, whether the notice can solve the problem of double assignment.The second part focuses on the modes of efficacy provided for the notification of assignment of obligatory rights and analyzes these modes. To be more specific, the paper analyzes China’s current assignment notice efficacy modes, and suggests the legislation adopted the mode of notice with rivalry efficacy against the debtor and the third party. In the case of only one assignee is involved, the role of notice is to inform the debtor that the debt has been transferred, but in cases where there are multiple transferees, the notice not only serves to inform the debtor of the new creditor, it also shows that the transferer who has informed or informed first may owns the final creditor’s rights.The third part is about the requirements of efficacy of transference notification of credit. In the aspect of subject, this paper analyzes and concludes that the transferee may also issue the notice of assignment. In the aspect of formality, this paper discusses the rationality of litigation and announcement as the form of the notice of assignment. In terms of timing, it is proposed that after the assign agreement takes effect and before the debtor discharges his debt, notice can be issued. Notice can be issued before a lawsuit, and can also be issued in the course of the trial. There should be conditional recognition of the advance notice.The fourth part mainly analyzes the efficacy of notice for the debtor’s part. This paper mainly discusses and concludes that the debtor’s issuance of notice in compliance with certain conditions may generate the effect of interruption of statute of limitations. The paper then introduced the superficial assignment mechanism provided in the legislation of other countries, and then concludes that the notification should be able to constitute the superficial assignment, the legislation of our country in the future may as well acknowledge the superficial assignment.The fifth part mainly analyzes the notice of assignment for the third party’s part and those other than on the debtors’. This part mainly discusses that when dealing with double assignment, the priority rules in various countries. And then the paper analyzes several priority rules comparatively, concluding that in our country, "law of contract" may as well recognized notice as priority for the double assignment in the field of ordinary creditor’s rights transfer, whereas registration in some specific commercial field.The sixth part is chiefly a summary of the whole paper, answering the questions raised in the first part combining the arguments from the paper, providing ideas and methods to solve the problems existing in the effectiveness of the notice of assignment of rights.