On The Legal Effect Of The Assignment Of Rent Of Creditor's Rights In The Principle Of"Kauf Bricht Nicht Miete"

Article 229 of the China Contract Law establishes the rule of " Kauf bricht nicht Miete ".If the lessor gives the rental creditor's rights in advance and then transfers the ownership of the subject matter of the lease to a third party,the legal relationship between the lessor,the assignee of rental creditor's rights,the lessee and the assignee of the leased property and the ultimate ownership of the rental creditor's rights exist in the academia and practice.In view of this,it is necessary to systematically sort out and comprehensively analyze the nature of future rental claims,the legal effect of the principle of Kauf bricht nicht Miete,the priority rules of multiple assignment of creditor's rights,and the ultimate ownership of future rental claims.This paper is composed by six parts:The first section raises questions.Through the summary of the two typical cases and the views of the court,the focus of the dispute is summarized,and the legal effect of the transfer of rent creditor's rights in the principle of Kauf bricht nicht Miete is discussed.The second section mainly deals with the nature and the permissibility of the rent of creditor's rights.After specifying the four definitions of the nature of the creditor's rights in the academic and practical circles in China,this part excludes the view that the future rent creditor's rights belong to the existing creditor's rights,conditional creditor's rights and time-limited creditor's rights one by one by reviewing the foreign legislation and sorting out the viewpoints of the academic circles,and finally determines that the future creditor's rights belong to fundamental future claims,and that can be freely transferred.Finally,through the elaboration and comparison of the three main points of view on the time of transfer of creditor's rights in comparative law,it is concluded that China should adopt the view that the transfer of future creditor's rights will occur at the time of signing the contract.The third section mainly discusses the general legal effect of the lease rule and the rights and obligations of the assignee of the lease.Firstly,from the viewpoint of academia and judicial application,this section argues that the legal contractual status assuming mode is adopted in the principle of Kauf bricht nicht Miete.Secondly,when the ownership of the leased property is transferred,the buyer should have the right to claim rent,deposit and contract rescission.Finally,the buyer's obligation to assume the original lessor does not include the atypical agreement of the lease contract.Considering the protection of the lessee,the principle of relativity of the contract,the subordinate nature of the security right and the return node of the deposit,it is argued that if there is a deposit clause in the original lease contract,no matter whether the buyer actually collects the deposit or not,the lessee shall be obliged to return the deposit at the end of the lease relationship.The fourth section mainly analyzes the effect of future rent assignment on third parties other than debtors.By introducing foreign legislation,doctrine and precedents,and finally combining the attitude and position of our country's law,the author believes that our country should adopt the priority rule of "time first,right first" multiple assignment of creditor's rights,that is,the lessee who is inferior in time can not confront the assignee of rental creditor's rights in the future.However,in judicial practice and theory,there are two different standpoints on whether the effect of future assignment of creditor's rights is equal to that of creditor's rights actually occurring after the change of assignor's status.This paper will discuss the theoretical basis of future rent assignment,the balance of interests between the parties and the system of the assignment of creditor's rights separately.It is believed that the assignee of future creditor's rights can not only obtain the rent actually occurring before the assignment of the subject matter,but also the rent generated after the assignment of the subject matter.In addition,if the original lease contract is cancelled,the assignee of creditor's rights can get relief according to the relationship between the assignment of creditor's rights and the cause of action because he can not actually obtain his creditor's rights.The fifth part discusses the ultimate ownership of rental claims,the scope of effectiveness of the assignment and the disposal after the termination of the original lease contract.After a thorough study of German and Japanese legislation,this paper discusses the theoretical basis of future assignment of creditor's rights,the balance of interests between parties and the system of assignment of creditor's rights from the perspective of academia.It is believed that the assignee of rent creditor's rights can not only obtain the actual rent before the assignment of the subject matter,but also the future rent after the assignment of the subject matter.In addition,if the original lease contract is cancelled and the assignee of the creditor's rights can't obtain his creditor's rights,he can get relief according to the relationship between the assignment of creditor's rights and the act of reason.The sixth part is mainly to summarize this article.At the same time,it is suggested that our country should improve the system of Kauf bricht nicht Miete and assignment of creditor's rights when making the contract of civil code.The main purpose is to clarify the assignment and time of future creditor's rights,determine the priority rules of multiple assignment of creditor's rights,and clarify the validity scope of future rent creditor's rights assignment in the principle of Kauf bricht nicht Miete.