Research On The Judicial Application Of Creditor's Right Of Revocation

In recent years,it is not uncommon for debtors to evade debts and perform damaged creditor's rights maliciously by using the property disposition freely granted by law,which greatly endangers transaction security and market economic stability.After more than 10 years of development,the system of creditor's revocation right established in the Contract Law of our country has been gradually perfected in legislation,which has played a positive role in curbing the debtor's behavior of improper disposition of property damage to creditor's rights.However,with the development of society,economic relations are becoming more and more diverse,and the problems existing in the judicial application of this system are actually.It is becoming more and more prominent.Therefore,the system of creditor's revocation right should be studied from the perspective of hermeneutics.Based on the analysis of 80 sample cases,this paper makes an empirical analysis and Research on the problems of creditor's revocation right in the identification,exercise and legal effect of its constituent elements,and combines case analysis with theoretical analysis to discuss the relevant issues in order to promote the system in judicial practice.Correct application,really play the role of the system in protecting the interests of creditors,safeguarding transaction security,and promoting the healthy development of market economy.This paper is divided into four parts:The first part briefly introduces the collection of sample cases and summarizes the common problems of creditor's revocation right in judicial practice.In the second part,aiming at the fact that the subjective and objective components of the creditor's revocation right are different in judicial cases,the author puts forward that the subjective components of the creditor's revocation right should include the subjective malice of the debtor through the analysis and comparison of various viewpoints,and points out that the subjective components of the creditor's revocation right should be reduced to the debtor's owners in judicial practice.In view of the standard of malicious identification,malicious presumption should be adopted to lighten the burden of proof of creditors;strict interpretation should be adopted in the subjective malicious identification of the assignee to balance the interests of creditors,debtors and assignees;and in the determination of the objective elements of the creditor's revocation right,whether "legal and effective creditor's rights" are valid or not.It is necessary to analyze whether the new problems such as the maturity ofcreditor's rights,the disposition of "harmful creditor's rights",the disposition of property by creditor's rights guarantor,the abandonment of inheritance rights and the debtor's creation of security can be cancelled.The third part,aiming at the problems existing in the exercise of creditor's revocation right,based on the analysis of the theoretical viewpoints of the nature of creditor's revocation right,expounds the viewpoint that the defendant in action should be determined according to the nature and effectiveness of the formation right of revocation,and that the scope of the exercise of creditor's revocation right should be limited to the creditor's creditor's right of revocation.The fourth part,the main content is to explain the legal effect of the creditor's revocation right.The power of the creditor's revocation right does not include the right of claim such as property return.The creditor can not directly request the transferee(beneficiary)of the possession property to return the property and so on.The debtor's laziness in exercising the request should be solved by establishing enforcement rules.The preservation of creditor's rights in claim of rights should follow the rule of "priority of repayment" when dealing with the property returned by the debtor.