The Research On The Assignment Of Future Claims

With the rise of business such as commercial factoring and asset securitization,the assignment of future claims has gradually entered people's vision.However,due to the lag of legislation and the weakness of theoretical research in our country,such cases are often wrong in judicial practice.This paper mainly uses the method of legal dogmatics,based on the current law,combined with the academic point of view and judicial judgment to conduct a systematic study on " the Assignment of Future Claims",in order to provide some help for judicial practice,In addition to the introduction and conclusion,this paper is divided into three chapters:The first chapter discusses the definition of future claims.Generally,scholars define the concept of future claims from the time dimension,that is,the concept of future claims is only to describe the time when the future claim occur,and this concept is also used to refer to the form of the creditor's rights not established,that is,a creditor's right of expectation,expectation or hope with expectation interests.The recognition of future claims is usually based on the direct investigation of whether the claims actually occur,but it is difficult in special circumstances.As far as the rent claims are concerned,this paper,by examining the nature of the lease contract,draws a conclusion that there are only a small part of the actual claims and the rest are future claims.As far as the claims with stop conditions and start periods are concerned,this paper first finds out that they are essentially the claims under the legal acts with stop conditions and start periods,and then draws a conclusion that they are future debts As far as the income right is concerned,after excluding the income right of supply water,heat,electricity and gas,through the investigation of legislation and normative documents,it is concluded that the income right is a future creditor's right between the income right holder and the payer,while between the asset owner and the income right holder,the income right is a real right,not a future creditor's right.In the future,there will be many types of creditor's rights,only the "dichotomy" standard is clear and can be used,but as the classification standard,basis is quite difficult to think about.After reviewing scholars' views and examples,this paper holds that the "basis" is the cause of debt,and if the framework contract contains the obligation to conclude individual contracts,it can also be regarded as the "basis".The second chapter introduces the assignability of future claims.It can be seen from the perspectives of the world and the academic and practical circles of China that the assignment of creditor's rights has been generally recognized in the future.However,not all future claims can be transferred.Only those future claims that have the possibility of identification can be transferred.At the same time,as a disposition act,the assignment of future claims should also be subject to the determination of the object of disposition principle and the object of legal act.The third chapter discusses the special problems of the legal effect of the assignment of future claims.First of all,the paper introduces the problem of whether the future assignment of creditor's rights can achieve the effect of bankruptcy isolation and compulsory execution exclusion.Then,by analyzing the two theories of "special retroactivity" and "construction under the dichotomy of future claims" in detail,it is concluded that "special retroactivity" is not advisable,and " construction under the dichotomy of future claims " is more logical,but it still needs to be improved to be more suitable for the current situation in China Conclusion of legal system.Secondly,in terms of the effect of advance notice of future assignment of creditor's rights,this paper first distinguishes whether the potential debtor is certain or not,and for the uncertain future assignment of creditor's rights,in fact,it is impossible to give advance notice;for the future assignment of creditor's rights determined by the potential creditor,this paper takes whether the advance notice can reach the effect of formal notice without harming the interests of relevant parties as the judgment standard It is concluded that advance notice does not have the effect of formal notice.Finally,on the ownership of the right of double assignment of future claims,this paper analyzes the relevant academic views of Germany and Taiwan one by one,and points out that there is no sufficient and appropriate point of view,and puts forward the view that should be solved by judicial interpretation.