Research On Contractual Provisions Prohibiting Assignment

Since modern times,creditor’s rights have become more and more prominent as attributes of property.Improving the transferability of creditor’s rights has become the focus of legislation in various countries.The free transfer of creditor’s rights led to an imbalance of interest between the debtor and the creditor and the assignee.Agreement prohibiting the assignment of claims as a tool for balance,it also led to a new imbalance.Germany,France,Japan and other civil law countries successively revised the law to adapt to the development of the times.In terms of encouraging the circulation of creditor’s rights,the United States set an example firstly and affected the formulation of relevant international treaties profoundly.In our country’s prohibition of special practice,the courts in various regions agree that the interpretation theory is based on the distinction between benevolence and maliciousness.On the level of legislation,the original theory was based on the distinction between benevolence and maliciousness,but most of the typological distinctions have been made recently,and the Civil Code also adopts the distinctions.The distinction between benevolence and maliciousness should not be the basis for the interpretation of Article 79,Item 2 of the Contract Law.It is not recommended to adopt a typological method in the legislative theory.It is recommended that the transfer of claims that violate the prohibition of special contract is fully effective when the assignee is malicious.In the event of a major negligence,the debtor may file a limited defense and be able to pay off or otherwise eliminate the debt to the assignor.If the debtor chooses to pay off from the assignee,it may request the assignor to bear the liability for breach of contract.