On The Determination Of "Damage To Creditors" In The Creditor's Right Of Revocation

As one of the ways to protect the credit,the creditor's right of revocation is a powerful way to protect the interests of creditors.Article 74 of the Contract Law provides corresponding provisions for the creditor's right of revocation.However,the expression "damage to creditors" is ambiguous in interpretation,which in turn makes the creditor's right of revocation system controversial in its application.In the judicial practice,it was also subjected to a "cold encounter" and failed to play its due role.It is necessary to "damage to creditors" as one of the objective elements of the creditor's right of revocation.Without damage,there is no right of revocation.The identification of "damage to creditors" is the core issue.As far as the judgment criteria for "damage to creditors" are concerned,there are formal standards of "debt over" and "payment cannot".There are also substantive standards.Adopting a "one size fits all" approach is unwise,we should adopt appropriate criteria based on the debtor's specific behavior.Article 74 of the Contract Law and Judicial Interpretation of the Contract Law(II)Article 18 lists only six situations in which the debtor's conduct can be revoked,but it should be explained in terms of purpose expansion.Under this premise,the debtor when the act is unpaid,judge whether it causes damage to the creditor,and pay more attention to the formal standard.When the debtor's behavior is a paid act,if it judges whether it causes damage to the creditor,it needs to take into account the subjective state of the debtor,judging by the substantive standards.The determination of "damage to creditors" has the excluded situations.When the debtor's behavior is to refuse the acquisition of the interest,the creditor's right is not subject to the property,and after the debtor's act is established,with sufficient guarantee or no enforcement power,the general situation it is impossible to identify "damage to creditors".In addition,under the premise of an objective expansion of the debtor's type of conduct that can be revoked in Article 74 of the Contract Law,discussing the controversial behavior of the debtor,that is,whether the individual settlement,the settlement of the substitute,the provision of the guarantee,and the abandonment of inheritance can be considered as "damage to creditors".When the debtor's conduct is a separate settlement,a surrender,or a guarantee,it needs to be discussed separately.When the debtor's behavior is individual settlement,it is necessary to distinguish whether the debtor has settled the debt that has expired or the debt that has not yet expired.When the debtor's behavior is the settlement of the substitute,it is necessary to distinguish between the unreasonable low-cost substitute or the reasonable price.When the debtor's behavior is to provide security,it is necessary to distinguish between providing guarantees for individual creditors or guaranteeing the claims of others.When the debtor's behavior is to abandon the inheritance,it should be considered as a non-compensatory act rather than a refusal to acquire the interest,which in turn can be considered as "damage to creditors".At the same time,the state of "damage to creditors" must exist not only at the time of the debtor's actions,but also when the creditor exercises the right of revocation.Finally,the steps of "damage to creditors" may be formed,in the order of whether the creditor's rights are legal and valid,whether the settlement of the claims depends on the debtor's general capital,whether the debtor is in a state of no capital,and whether the unfunded state exist in the debtor's conduct and the creditor's right to revoke simultaneously.If the determination is based on the above steps,we still have doubts,then it is necessary to combine the purpose of creditor's right of revocation.According to the above comprehensive discussion,it can provide theoreticalguidance for the identification of "damage to creditors" in practice,and then promote the creditor's right of revocation to be more widely applied in practice and truly play its role.