Research On The Notice Of Assignment Of Creditor's Rights

The assignment of creditor's rights of continental law originated from Roman law,but its theory about the transfer of creditor's rights was not well-developed,step by step,and used in many ways.It was a complete system in the age of the imperial government,and constitute a typical example of modern law.In order to meet the requirements of the social economy,the creditor's rights has been quietly evolved from the legal lock between the early creditors and debtors of the Roman Law to a powerful tool for investment and financing,and have become an integral part of investment liquidity.It can be seen that the formation and improvement of the system of creditor's rights and the development of trade are inextricably linked.Because in the case of extremely prosperous transactions,everything that contains value can be used as property,and creditor?s rights have significant value attributes.They can play a role in financing,security and other fields,and are not inferior to physical assets..In short,in capitalist economic transactions,creditor?s rights is treated and treated as a property.Modern and contemporary laws not only clarify the possibility of the assignment of creditor?s rights,but also try to enhance the freedom of the assignment of creditor's rights,while at the same time trying to balance their security.Changes in property rights can be secured through registration or delivery of publicity means.As a form of intangible property and claim assignment,creditor?s rights have no effective means of publicity.However,in the course of the assignment of creditor?s rights,the efficiency of the assignment of the original creditor?s rights is involved.The interests of the transferee,the safe status of the transferee,and the debtor's security of repayment are multiple interests.Therefore,it is necessary to make appropriate institutional arrangements for the transfer of creditor's rights to the interests of the parties in order to seek a balance of interests.We know that "the legislative process is essentially a value selection In the process of selection,the current law is by far the most compromising and consensus that people can achieve on value judgments.The product of the most thorough value measurement.” This article attempts to analyze the relevant judgments of the countries' creditor's rights and entrusted legislation,current laws in our country,and judicial practice.Examples include the notification as the core,focus on examining the effectiveness of transfer notices to debtors and third parties other than debtors,and striving to find a mode of transfer of creditor's rights that suits our country.The body of this article consists of the following three chapters:The first chapter mainly analyzes and researches the claims of transfer of creditor's rights and related laws.The nature of traditional civil law countries in determining the nature of claims is mainly divided into two types,that is,the theory of contract and quasi-real right formalist.The theory of contract states that the creditor's rights were transferred directly to the creditor's rights due to the transfer of the contract.The quasi-real right formalist states that While the creditor and the assignee generate the transfer of debt obligations through sales,gifts,or other burdens,it is necessary to reach the satisfaction of the transfer of the creditor's rights so that the creditor's rights can be transferred,that is,the creditor's rights transfer contract.Article 80,paragraph 1,of the Contract Law of China makes relevant provisions on the assignment of creditor's rights,but it does not specify the mode of the assignment of creditors' rights.Therefore,there is no little controversy and confusion in the theory and judicial practice regarding the transfer of creditor rights.Because China's civil law does not recognize the relevant real right formalist,that is,it does not distinguish between burdening and disposing,most scholars use the change of creditor's rights as a natural consequence of making the contract effective.However,the theory of property rights behavior not only provides us with a clear analysis of legal behavior,but it is also gradually accepted in judicial decisions.Therefore,it should continue to be applied.In addition,some scholars in our country have put forward the effective elements of the notification that,after the creditor's right transfer contract is established,it needs to be notified before the actual transfer of the creditor's rights occurs.This article believes that the creditor's right can be effective by agreeing with the contractor or the contract after the transferor's and the assignee's meaning is expressed.When the contract comes into effect,the creditor's rights will be transferred,and the transferee becomes a new creditor.The notice has no effect on the effectiveness of the contract or contract.In the legal system,it is more reasonable to identify the assignment of creditor's rights as quasi-real right.The second chapter mainly analyzes the effect of notification on the debtor and the core elements of the notification.As for the effectiveness of the creditor's rights transfer notice to the debtor,there are mainly two major legislative examples.First,as long as the debtor knows the subjective status of the transfer of the creditor's right,the debtor should pay off to the transferee it knows.Second,after the debtor receives the notice,it can be paid according to the contents of the notice.This article agrees with notificationism,and based on this analyzes the core elements of the notification.There are mainly two legislative examples regarding the subject of the transfer notice.The Japanese Civil Code considers that the creditor should make the transfer,while the "civil law" in the Taiwan region of China considers that the creditor is the subject of the notice.Assignee can also make offers and notices.Although China's “Contract Law” has not made explicit provisions on the subject of transfer and notification,it considers that the transferee also has the right to notify the debtor based on the flexibility of transfer and notification and the interests of the transferee.Regarding the form of notification,most countries' legislation does not place excessive restrictions on this,but the French civil law and the Japanese civil law have made demands on theform of notification.China's “Contract Law” did not expressly provide for the form of the assignment and notification,but from the perspective of the security of the assignment of claims and the efficiency of evidence,the transferor should deliver the text of the debt and the relevant concession and vouchers to the debtor.In the form of notice,at least should also be notified in writing.The third chapter deals with the special issues of notice of creditor's rights,including superficial assignment of creditor's rights,and double assignment of creditor's rights.This chapter focuses on the study of the issue of double assignment of creditor's rights.There are mainly the following three modes.The first is the adversarial nature of determining the creditor's right based on the order of the creditor's right to establish the contract;the second is the notification advocacy to determine the ownership of the creditor's right based on the notification's priority;the third is the registration doctrine to determine the creditor's ownership.The above three types of creditor ownership rules have advantages and disadvantages for the parties to the creditor's rights.This article believes that we should adhere to the anti-democratism in order to implement the systemic and logical inertia of the creditor's rights,and we can combine the notification adversarialism in the effectiveness of the evidence and the fact determination.Specifically,when the transferee chooses to conduct a notary,the notary office shall notarize the date on which the creditor's right was granted and the date of the notice,and shall be unified as a specific date.The court can refer to the following rules when determining the validity of the evidence and the fact,that is,a notarized person takes precedence over a not-notarized person.The above rules unify the date of the establishment of the contract and the date of the notification,which not only conforms to the logical inertia of the assignment of creditor's rights,but also takes into account the position of the debtor as an information center in the state of disclosure of creditor's rights.Although notarizing the relevant concessions and evidence will significantly increase transaction costs,whether or not to choose notarization depends on the transfer of creditors to the parties.Therefore,it does not actually increase the transaction burden.Before the creditor's rights registration system is fully established,the debtorshould be used as an “intelligence center” that issues creditor's rights information to the public.Such notification-based traditional creditor's rights transfer system should continue to play its role.