Legal Effect Of The Special Agreement Prohibiting The Assignment Of Claims-The Enlightenment Of The Revision Of Japanese Law To China

Under the context of the Japan's reform on its law of obligation,the main subject of research for this paper is through the analysis of the status quo of China' s prohibition of assignment agreement,compared with amendment content of Japan on the prohibition of assignment agreement,it is summarized the enlightenment of Japan's law reform on China from the aspect of prohibition of assignment agreement.The main text is composed of four parts:the first part is the basic content of assignment of creditor's rights and the prohibition of assignment agreement;the second part is the status quo of the validity of prohibition of assignment agreement;the third part is the amendment of the Japanese law on the prohibition of assignment agreement;the fourth part is the reflection and suggestion of China's system of prohibition of assignment agreement.The first part is the basic content of the assignment of creditor's rights and the prohibition of assignment agreement.Firstly,the characteristics of disposition and causation are analyzed from the perspective of the behavior nature of the prohibition of assignment agreement.Then,it is analyzed the specific content of the prohibition of assignment agreement stipulated in article 79 of the Contract Law of China,including the legal relationship under the provisions and the legitimacy basis of the prohibition of assignment agreement itself.Among which,the internal and external validity of the prohibition of assignment agreement is clarified through the legal relationship,and its legitimacy basis is analyzed through its purpose of protecting the interests of the debtor and the method of party autonomy principle,so as to further elaborate the validity of the prohibition of assignment agreement.The second part mainly discusses the validity issue of prohibition of assignment agreement in China.First of all,from the current situation of China' s legislation,legislative history and operational status quo,the conclusion is arrived that China's legislation and judicial practice hold a positive attitude on the internal validity of prohibition of assignment agreement;Then the theoretical dispute about the internal validity of prohibition of assignment agreement is summarized around the relationship between protecting the interests of the debtor and promoting the free circulation of creditor's rights.Once again,through the analysis of provisions from current law and the Civil Code(Third Review Draft)on the external validity of prohibition of assignment agreement combined with the cases of practice and different theories of the academic community to reveal the argument of China's prohibition of assignment agreement effect theory and creditor's right effect theory.The third part is a study on the law amendments of prohibition of assignment agreement in Japan.First of all,it is the changes after the 2017 amendment on the content of the prohibition of assignment agreement system in Japanese law.It can be seen that in order to promote the flow of creditor's rights,the revised Japanese law weakens the external validity of the prohibition of assignment agreement to a certain extent,that is,the assignments of creditor's rights which is in violation of the prohibition agreement enjoy full validity;then from the three aspects of the flow of creditor's rights,the external validity of prohibition of assignment agreement as well as new financial transactions,it is analyzed Japan's judicial practice dilemma before the amendment;once again,it is introduced the pre-amendment legal precedent and theories around the "good faith" of the second proviso of Article 466 of the Civil Code of Japan,the legal nature and the retroactive validity of assignment of creditor's rights with prohibition of assignment agreement and pledge of obligation with prohibition of assignment agreement;finally,in the context of the Japanese case,the issue of the validity of the prohibition of assignment agreement is discussed at the entry point of prohibition of assignment agreement in future assignment of creditor's rightsIn the fourth part,it is firstly summarized the three aspects that should be considered in the process of establishing prohibition of assignment agreement,namely,the convenience of the creditor's right transaction,the stability of the creditor's right transaction,the conflict between the creditor's right assignability and the protection of the debtor;then it is summarized the experience of the amendment of article 466 of the Civil Code of Japan,including the transformation to the mode of creditor's rights validity and the detailed provisions on the protection of debtors under special circumstances.Finally,it puts forward the suggestions on the establishment of the provisions on prohibition of assignment agreement in the process of compiling the Civil Code of China by combining the factors of consideration,the experience of Japanese law amendment and the judicial practice of China,that is to say,to set up the general clauses in principle for prohibition of assignment agreement with special clauses to protect debtors'interests in exceptional cases.