The Notice Of Assignment Of Creditor's Rights

Articles 79-83 of the Contract Law in China regulate the assignment of creditor's rights.The assignment of creditor's rights is also called the transfer of creditor's rights.In the early days of Roman law,debt was regarded as “juris vinculum" and the assignment of creditor's rights is strictly restricted.It believes that debt is the relationship of specific persons.Changing one end will make the relationship of the debt lose identity.Therefore,the change of the parties is not allowed.However,with the development of modern countries' economies,creditor rights,as a kind of property right with economic value,have strong liquidity.Therefore,under this economic background,countries have allowed the transfer of creditor's rights,which has created a system of the assignment of creditor's rights.The assignment of creditor's rights is a product of economic development and is of great significance for promoting the circulation of creditor's rights.The parties of assignment of the creditor's rights are the assignor and the assignee.Because the creditor's rights are transferred under the premise of maintaining the identity of the debt,it involves not only the assignor and the assignee but also the debtor.Therefore,the assignment of creditor rights not only needs to protect the interests of the assignor and the assignee,but also should protect the interests of the debtor.Since the contract of the creditor's rights is based on the contract relativity principle,it is difficult for the debtor as the contractual third party to know the fact of the assignment of creditor's rights.In order to protect the debtor's interest in the assignment of creditor's rights,thenotice comes into being.Article 80 of the Contract Law is a legislative manifestation of the notice of assignment of creditor's rights,which regulates that the debtor should be notified,otherwise the assignment will not be effective.It can be seen that the notice not only protects the interests of the debtor,but also plays a vital role in the realization of the entire process of assignment of creditor's rights.However,the provision only determines that the assignment of creditor's rights should be notified to the debtor,the details of the notice are not covered in depth.As for the notice,is the subject of the notice limited to the assignor specified in the law? Can the assignee become the subject of the notice? Can a non-debtor receive a notice as a notified debtor? What form should the notice take? Does the notice time have an impact on the assignment?These questions cannot be answered in this article.At the same time,after the debtor is notified,how to restrict the debtor,the assignor and the assignee cannot be reflected in the provision.In addition,when the assignor grants a double assignment,how to determine the ownership of the creditor's rights and the legal effect of the notice are also important issues affecting the assignment of creditor's rights,which need to be further clarified.In this regard,this passage starts from the current disputes over the notice of assignment,and studies the issues related to the notice.At first,the elements of the notice need to be clarified to determine whether there would be a notice.Under the premise of constructing a notice,the internal validity of the notice and the external validity of the notice based on the double assignment are discussed.Finally,the legal effect of the assignment is realized.On this basis,the passage is divided into four chapters:The first chapter describes the parties of the notice of assignment,which are the subject and the counterpart of the notice.According to the provision of Article 80 of the Contract Law in China,it is certain to affirm the assignor as the subject of the notice,but there has been controversy over the status of notice subject to the assignee.Based on the analysis of academic viewpoints and judicial practice jurisprudence,this passage believes that the assignee should be affirmed as the subject of notice.At the same time,in order to protect the interests of the debtor,the notice of assignee shouldbe affirmed with certain restrictions,such as the form of the assignee's notice and the evidence presented,to expand the scope of the subject of notice.The counterpart of the notice shall not be limited to the debtor himself.In the case of a single debtor,the closeness of the relationship with the debtor and the trading habits can be referenced,and the "substitute" of the debtor is affirmed as the counterpart of the notice.When the EMS form is used for the notice,the debtor may be deemed to have received the notice as long as the delivery address is correct and the result is displayed as "signed".In the case of most debtors,the classification should be based on the nature of the debt and the counterpart of the notice should be determined separately.The second chapter mainly discusses the form and the time of the assignment notice.The notice of assignment does not need to be constrained to some particular forms.As long as it can make the debtor aware of the facts,it should be recognized.In addition,as for the form of litigation and the form of announcement,it is a special form of notice,which is a product that cannot be realized by the general form of notice.Therefore,it should be recognized in certain circumstances,but it cannot be used beyond the general notice form.It can only be used as a supplementary form,where the general notice is difficult to achieve.The notice is generally made at the same time as the creditor's rights are granted or after the creditor's rights are granted,but not earlier than the time when the creditor's rights are granted.Therefore,the effect of the advance notice should not be acknowledged,but the notice of assignment of the future creditor's rights is different,which is formed in the future.It will happen with certainty so it can be allowed.For the latest time of notice,it is valid as long as the debtor is notified before the performance,even if the debt performance period has ended.The notice will affect the statute of limitations of the transferred creditor's rights on the other point of view.There's controversial mainly in terms of whether the notice can lead to the discontinuance of action limitations among the academic community.This should be analyzed based on different situations.Firstly,it comes after the expiration of the debt performance period.In addition,special forms of notice follow special provisions.Finally,for the general form of notice,it is necessary to see whether the content of the notice constitutes a reason for the discontinuance ofaction limitations.The third chapter researches the internal validity of the notice of assignment.Depending on the different subjects,the validity of the assignment notice can be divided into the internal validity and the external validity.The internal validity mainly involves the debtor,the assignor and the assignee.For the debtor,the assignment of creditor's right should be effective through the notice.Only by the assignment notice,the assignee can claim the right to the debtor.Without the notice,the debtor can reject the request of the assignee.Notification is classified as notification effectiveness and notification confrontation.At present,the Contract Law adopts notification effectiveness.It believes that the assignment of creditor's rights will not be effective for the debtor without notice,but there are certain limitations.Before the notice,although the debtor cannot be bounded,the creditor's rights have been transferred to the assignee,and the assignee has the right to own and dispose,so it won't take effect to the debtor.Therefore,it is more reasonable to adopt notification confrontation.Without notice,it does not mean that the assignment won't take effect to the debtor,but the effect of the creditor's rights cannot stand against the debtor.After the notice,in order to protect the interests of the assignee,the assignor may not unilaterally revoke the notice unless the assignee agrees.However,this is only for valid notice.If there is a flaw in the notice,it should be analyzed specially.In the event that the notice is untrue,the assignee does not have a blamable cause and therefore should be protected,and the revocation requires the consent of the assignee.However,if the notice is restricted,it should be handled in accordance with the relevant provisions of the meaning of the intention,according to third party fraud or coercion.For the assignee,the notice is the basis for the realization of the creditor's rights,but the receipt of the notice by the debtor merely means that it can no longer be paid to the assignor,instead of having to be paid to the assignee.The notice allows the assignee to claim rights from the debtor,but ultimately the realization of the rights requires providing certain written evidences to the debtor.Therefore,after the debtor is notified,when the assignee claims rights to the debtor,whether the notice subject is the assignor or the assignee,the debtor should be provided with certain writtenevidences to ensure the security of the creditor's rights and realize the transferred creditor's rights.The fourth chapter introduces the external validity of the notice of assignment.It is mainly reflected with the issue of the ownership of creditor's rights in double assignment.At present,there are mainly three rules for the ownership of creditor's rights in double assignment: the first is the “time priority” rule;the second is the“notice priority” rule;the third is “register priority” "rule.Under the "time priority"rule,the creditor's rights belong to the first assignee,which is consistent with the assignment effect of the creditor's rights.The "notice priority" rule considers that the ownership of creditor's rights in double assignment shall be subject to the notice,and the object in the notice obtains the transferred creditor's rights.The “register priority”rule depends on registration,and the previously registered assignee is the actual obligee of the transferred creditor's rights.Through the analysis of the above three rules,this passage believes that the "time priority" rule should be adopted,and this rule is also consistent with the time when the creditor's rights transfer.Under this rule,the notice does not determine the ownership of the transferred creditor's rights,but determines the protection of the debtor's liquidation.If the debtor pays off the object which is stated in the notice,the effect of debt elimination occurs.According to different situations,the effect of the notice can be divided into three parts: double assignment without notice;only one notice of double assignment and both notices of double assignment.In each case,the debtor's performance in accordance with the notice can result in the elimination of the debt.On the contrary,for the assignee that is paid off,whether he can retain the ultimate benefit depends on whether he belongs to the actual obligee.If he is the first assignee,it can retain the ultimate benefit.But if he is not the first assignee,he should return the unjust enrichment to the first assignee.However,he can claim the corresponding relief based on the contract which the assignee signs with the assignor.At the same time,for the debtor's liquidation problem which involves two notices,due to subjective interference,the debtor should not be allowed to decide the object of liquidation.In addition to the debtor's involvement in the lawsuit,if the debtor cannot accurately determine the actualobligee,the payment target can be deposited to eliminate the debt.