The External Effect Of Assignment Of Creditor's Rights In ABS

Today,China's market economy is increasingly buoyant,the acceleration of creditor's rights is not only reflected in the ordinary creditor's rights,but more in the field of commercial activities.As an intangible property,creditor's rights have the property of free circulation,especially in the process of ABS.The assignment of creditor's rights in ABS is often manifested in the assignment of creditor's rights between enterprises and SPV in order to achieve financing.Compared with the ordinary creditor's rights between folk natural persons,this amount is huge and involves multiple creditor's rights.The complicated trading mode determines that double assignment dispute is more likely to occur.When double transfers occur,who exactly does the creditor's right belong to? To answer this question,we must first clarify how creditor's rights affect the third party out of the debtor-creditor relationship.1.The Application of Assignment of Creditor's Rights in ABS under Positive LawOn the basis of Article 80 of Contract Law,the notice is only legally against the obligor.Because Article 80 of the Contract Law does not stipulate the effect of creditor's rights assignment upon third party out of the debtor-creditor relationship,it can only solve the problem of the debtor's liquidation and exemption in the case of double assignment,but cannot solve the question of the creditor's right ultimately belongs to which assignee.Generally speaking,there is still a lot of disagreement about the understanding of Article 80 of the Contract Law in practice.The phenomenon of co-different sentence in the same case is serious.However,judging from the trend in recent years,the court gradually turned from negation theory to affirmation theory and adopted the practice of expanding the interpretation of Article 80 of the Contract Law to solve the problem of double assignments.At this point,the company has to fulfill the notice to avoid the risk of the court's case.Therefore,the obligation of creditor's rights in ABS should still be judged by whether to notify the debtor or not.If the creditor's rights belong to the situation of accepting state-owned bank bonds or Credit Assets Securitization by the financial asset management company,the "announcement" shall be deemed to have served the notice to the debtor.2.The Creditor's Rights Assignment in ABS Should Be Regulated by Special LawStanding on the position of enterprises and financial institutions,enterprises and financial institutions assign their creditor's rights for financing activities.If we follow the procedures of delivering the assignment notification to the debtor,it could be tedious,the cost of notarization will also increase.And it will become the biggest obstacle to asset securitization.The speed of securities circulation is much greater than ordinary claims,which is the fundamental reason why different confrontation modes should be designed for these two types of creditor's rights.In the face of ABS,the issue of ABS should be dealt with in the form of special legislation.The registration system is the most appropriate choice by reviewing the UCC,the Loi Dailly and the Special Provisions of Perfection Requirements for the Assignment.Moreover,judging from the current law,China has already possessed the system and practice basis for the implementation of the registration system,and the accounts receivable assignment registration system is beginning to take shape.The increasing transfer registration requirements of enterprises and financial institutions also require the establishment of the registration system in the form of special law legislation.3.Revision & Legislation AdvicesAccordingly,the basic structure of the creditor' rights assignment system should be established: first,to distinguish between the ordinary creditor's rights and the commercial bulk claims involved in professional financial institutions and international factoring business,and the former to use notice to against the third party,for the latter to register as a means of assignment publication.Second,in the case ofordinary creditor's rights assignment,the debtor cannot be opposed without notice.In order to fight against the third party out of the debtor-creditor relationship,a written consent certificate issued by the creditor must be required,indicating the time at which the notice arrives at the assignee.Third,the confrontation requirement for the third party shall be separated from the debtor's.If the debtor pays off to the inferior assignee in good faith without faulty,it is thus excused.However,the assignee who has completed the assignment publication requirements can request the latter assignee to return the payment of the claim.I suggest that when compiling the section on creditor's rights assignment in the Civil Code of china,the following provisions can be made: the assignment of a claim may not be asserted against the applicable obligor or any other third party,unless the assignor gives a notice thereof the obligor.The notice set forth in the preceding paragraph may not be asserted against a third party other than the obligor unless the notice is made using a written consent certificate issued by the assignor.Thus,the priority rules for the double assignment can be determined:(1)the assignee who holds the assignment certificate win the creditor's right;(2)the assignee whose notice with assignment certificate first reaching the debtor win the creditor's right.In addition,for the creditor's rights in ABS,the registration is used as a confrontation requirement to against third party by special legislation,and it is otherwise stipulated that the delivery of the notice is still used to against the debtor.The assignor and the assignee regulated by the special law shall be legal persons with a registered capital of more than a certain amount.The assignment of the underlying creditor's rights must be for the purpose of financing.At the same time,it is stipulated that the copy of the registration certificate must be attached to the notification,and the debtor's liquidation obligation occurs since the notification arrived at the debtor,to solve the problem of the ownership of creditor's rights and the exemption of debtor's liquidation when the general confrontation requirement stipulated in the civil law coincide with the special confrontation requirement stipulated in the special law.