The Effect Of Prohibiting The Assignment Of Creditor’s Rights In The Commercial Field

The prohibition of special offer embodies the autonomy of will among the parties,and it also has certain restriction on the free circulation of creditor’s rights.Commercial field has its particularity different from civil field.If we blindly pursue the unification of legislation while the legislative provisions are unclear,it will inevitably lead to theoretical controversy and confusion in practice.Based on the commercial field,this paper analyses the disputes and confusion in theory and practice under the existing legislative framework,systematically expounds the particularity of the assignment of creditor’s rights in the commercial field and the special needs of market economy.On this basis,the effectiveness of the prohibition of special contract in the commercial field is divided into internal and external parts.This paper is divided into five parts.The first part affirms the value of the prohibition of alienation,and analyses its restrictions on the circulation of creditor’s rights.In addition,the existing theories and practical cases of our country are analyzed and demonstrated,and the contradictions and conflicts between the prohibition of alienation and the special effect in the theoretical and practical cases under the current legislative framework of our country are put forward,as well as the new trends in theory.The second part studies the content and types of the assignment of creditor’s rights in the commercial field,specifically analyses the particularity of the content of the assignment of creditor’s rights in the commercial field,and the particularity of the future special type of creditor’s rights in the classification and nature of the commercial field.In this way,it is proposed that exceptions should be made to the prohibition of assignment of creditor’s rights and special provisions in the commercial field.The third part studies the internal effect of the prohibition of special agreement in commercial field.In terms of internal effect,whether it is stipulated by relevant extraterritorial laws or in our country’s practice,a unified view is basically formed,that is,the prohibition of alienation and the effect of special agreement within the country.This paper also agrees with this view.In addition,on the premise of affirming the internal effect of the prohibition of assignment and the contract,the original creditor should be liable for breach of contract for the assignment of creditor’s rights in violation of the agreement.The fourth part analyses in detail the external effect of the prohibition of concessions and special agreements in the commercial field,which is different from the unified understanding of the internal effect,and different from the provisions of other countries in terms of the external effect.By analyzing the legislative cases of the representative countries of the two legal systems and the relevant provisions in international treaties,this paper proposes that our country should adopt the legislative example of "invalidity" for the external effect of the prohibition of special agreements in the commercial field.。In this way,the debtor’s rights and interests can be protected while ensuring the free circulation of creditor’s rights and the stability of the assignment of creditor’s rights.The fifth part puts forward the exceptional provisions in Article 79 of the Contract Law on the form of proviso prohibiting the assignment of creditor’s rights and the special effect in the commercial field,that is,prohibiting the internal validity of the assignment and the special validity of the contract in the commercial field,and adopting the legislation of invalid in the external field.In this way,we can respect the particularity of the assignment of creditor’s rights in the commercial field under the legislative mode of the integration of civil and commercial law,and guide the practice and application with more clear and perfect regulations.