The Research On The Twice Assignment Of Creditor's Rights

With the development of commerce and the need of economic life,creditor's rights are becoming more and more common and frequent.However,due to the particularity of creditor's rights,it does not have publicity effect.In real life,in order to obtain more benefits,The same creditor's right shall be transferred again under the circumstance that the creditor's right assignment contract has been concluded with others.This case is the twice assignment of creditor's right discussed in this paper.The Law of our country does not specify the twice assignment of creditor's right,so there are some disputes in theoretical research and judicial practice.First is when the creditor's right assigned,second is when the double transfer of creditor's rights happens,who can obtain the creditor's rights.This paper starts with the cases of practice,analyzes the rule of practice,puts forward the rule of attribution of right about double transfer of creditor's rights according to the actual situation of our country.The first part of this paper starts from the concrete cases in practice,analyzing the different judgment results of twice assignment of creditor's rights and summarizing the main dispute focus.According to the result of the relevant judgment,there are two kinds of rules about the effective time of assignment of creditor's rights.One is that the creditor's rights are transferred when he contract is established;The second is that the creditor's rights are transferred when the notice of assignment of creditor's rights reached debtor.There are three kinds of adjudication rules about ownership of right of double assignment of creditor's rights:1.The assignee whose contract of assignment of creditor's rights was first established obtains the creditor's rights.2.The assignee with the prior notice of assignment of the creditor's rights obtains the right.3.The ownership of creditor's rights is determined by comprehensive consideration of various factors.Because the above problems are not clearly stipulated in the law of our country,it brings great trouble to the judicial practice and is not conducive to the free circulation of creditor's rights.The second part of this paper is to analyze the relevant theories that affect the attribution of rights in the twice assignment of creditor's rights,including the nature of the assignment of creditor's rights and the external effectiveness of the assignment of creditor's rights.There are three theories about the nature of creditor's right assignment:1.The theory of quasi-property rights behavior.2.The theory of doctrine of creditor's rights3.The theory of formalism of creditor's right.Through the analysis of the theoretical requirements of the three theories and the relevant legal provisions of our country,it is concluded that the nature of our country's assignment of creditor's rights should be the "doctrine of creditor's rights".The external effect of the assignment of creditor's rights should be divided into the effect on the debtor and the effect on a third party except the debtor.In the assignment of creditor's rights in our country,the notice can produce antagonistic effect on the debtor.But the antagonistic effect on the third part does not stipulate in our law.The third part is the analysis and evaluation of the ownership rule of creditor's rights in the twice assignment of creditor's rights.By analyzing the different rules in the comparative method,the following three rules can be obtained:1.Time first,right first;2.notice first,right first;3.Registration first,right first.Then evaluating these three rules separately.Each of the three rules has its advantages and disadvantages.The time priority rule attaches importance to protecting the interests of the first assignee,but ignores the protection of the interests of the second assignee and the debtor.From the aspect of appearance,the “notice first,right first” rule adds the way of publicity,but notice as the effect of publicity is not good,in fact,it cannot achieve the purpose of coordinating the interests of each transferee.While the “registration first,right first” rule has a strong publicity effect,but it is not universal,the scope of use is limited.The fourth part puts forward my own views on the establishment of the ownership rule of rights in the twice assignment of creditor's rights in China.Based on the current provisions of our civil law and the trend of legislative development and on the basis of the foregoing determination of the nature of assignment of creditor's rights and the comparison of extraterritorial priority rules,putting forward the priority rule that accords with our country judicatory practice.”Time first,right first” rule is more in line with the legal basis of assignment of creditor's rights in China,but at the same time,this rule has the disadvantage of insufficient protection of the interests of the debtor and the bona-fide assignee.On the premise of “Time first,right first” rules,proposing the guarantee system of assignment of creditor's rights and the escrow rule of debtor to improve the “Time first,right first” rules.For the sake of protecting the security of the transaction,some special creditor's rights,such as receivables,should adopt the “registration first,right first”,because such creditor's rights are complex and the amount of such creditor's rights are generally higher.It also conforms to the legislative purposes of the Draft Civil Code of China?...