Ownership Of Rights In Double Assignment Of Creditor's Rights

With the development of The Times,the system of assignment of creditor's rights is more and more used in business and life,but there are still some omissions in the system construction of assignment of creditor's rights.In particular,what rules should be applied to determine the true obligee when the obligee transfers the same obligee to two different assignees? Article 80 of contract law of our country does not make clear provision on this issue.There are different opinions on this issue in the academic circle of our country,and there is no consensus on this issue in the judicial practice circle.This paper focuses on the problem of ownership of rights in the second transfer of creditor's rights,and through the understanding and analysis of various theories and viewpoints,it aims to explore reasonable rules to solve this problem.Moreover,as the legal effect of the assignment notice is at the core of the system system of the assignment of creditor's rights,it directly affects the ownership of the right in the second assignment of creditor's rights.In addition,the compilation of the civil code is in full progress.This paper analyzes the civil code sub-compilation(draft)in order to provide some basic thoughts and useful Suggestions for the drafting of the civil code.In addition to the introduction,the text consists of four parts.The first part,the question puts forward: the judicial and the theory cognition are different.First of all,starting from the case,this paper expounds the different applicable rules for the ownership of rights in the second assignment of creditor's rights in judicial practice.Some judgments apply the rules of "first notice,first right",and some judgments apply the rules of "first contract,first right".Secondly,the theoretical circles in China have different understandings on article 80 of the contract law.Some scholars believe that the assignment of creditor's rights without notice and without effect on the debtor is absolutely not effective,while some scholars believe that it is relatively not effective.The resolution of these differences is urgent to have a uniform and scientific rule for the ownership of the right of the second assignment of creditor's rights.Finally,the article 335 of civil code sub-code(draft)is evaluated and proposed on the basis of article 80 of contract law.The second part,the focus of theoretical disputes.How to determine the right ownership in the second assignment of creditor's rights is a controversial issue in the assignment of creditor's rights.The main viewpoints include contract formation doctrine,assignment notification doctrine and registration priority doctrine.The doctrine of contract formation is the rule of "contract first,right first",which determines the real obligee according to the establishment time of the contract.Doctrine of alienation of notice,namely the rule of "notice first,right first",which establishes who is the real obligee according to the order of the time when the obligor is notified.Registration priority doctrine,namely "registration first,right first" rule,which confirms who is the real obligee according to the sequence of assignment of creditor's rights to registration.The author focuses on the three viewpoints,and analyzes the advantages and disadvantages of the three theories.The third part,the effect of the assignment notice.The effect of the assignment notice of the creditor's right will determine when the creditor's right is actually transferred and when the creditor's right is transferred relates to the ownership of the right in the second assignment of the creditor's right.This part first explains the origin of the creditor's right assignment notice system,mainly from the provisions of the 91 rules of creditor's right assignment and consent in the general principles of civil law to the 80 rules of notice in the contract law,and analyzes the historical process of China's creditor's right assignment from consent rules to notice rules.Then it demonstrates the effectiveness of the assignment notice of the creditor's right,and clarifies that the agreement of the intention of the assignor and assignee in the assignment contract of the creditor's right is established,but the assignment notice is an important element for the occurrence of the transfer of the creditor's right,and the assignment notice is an important element against the third party.The fourth part,the choice of the standard mode of right ownership in the second assignment of creditor's rights.The time when the assignment notice reaches the debtor is the time when the creditor's right is actually transferred.Then,when the transferor transfers the same creditor's right to two different transferees successively,the true obligee shall be determined according to the rule of "notice first,right first".However,on the one hand,in the occasion of the assignment of the creditor's right in the future,or the basic relationship on which the creditor's right is generated exists(the creditor has been determined)and the creditor's right has not occurred,the advance notice to the debtor is invalid,or the debtor has not been determined,and there is no notice at all.On the other hand,in the case of the assignment of a large amount of creditor's rights,it is too complicated to give notice to the debtor one by one because the assignment of creditor's rights involves many debtors.At this time,registration priority doctrine can provide them with appropriate means of publicity,giving consideration to fairness and efficiency,and has feasibility.Therefore,the author thinks that for the transfer of large amount of creditor's rights or the transfer of future creditor's rights can be registered,the registration priority doctrine is adopted;Where the assignment of general and ordinary creditor's rights is not registered or cannot be registered,the doctrine of assignment notice shall be adopted and the nature and subject of assignment notice shall be expounded.In addition,based on the provisions of article 336 of the civil code sub-code(draft),this paper puts forward its own thoughts and Suggestions.