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Claims and notify the efficacy study

Author: JiWei
Tutor: WangQuanDi
School: Fudan University
Course: China Business Studies
Keywords: Notice of assignment of the creditor’s rights Assignment of creditor’s rights Multiple assignment Rule of priority
CLC: D913
Type: Master's thesis
Year: 2009
Downloads: 124
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Abstract

With the development of the capitalization of creditor’s rights, the assignment of the creditor’s rights has become more and more important. The nucleus of the assignment of the creditor’s rights is the system of the notice of assignment of the creditor’s rights. In addition, validity of the notice is the hard core of the system. Validity of the notice is distinguished as validity to the debtor (inner validity) and the validity to the third party (exterior validity).As to the validity of the notice of the assignment, our legislation is too simple, and the academic circles also does not pay much attention to it. This situation can not meet the demand for the development of the system of the right assignment. In light of this situation, this thesis focuses on the validity of the notice and the factors which influence the validity. The main body is composed of three chapters.Chapter 1 mainly studies the validity of the notice to the debtor. This part expounds and proves that the assignment become effective to the debtor only on condition that the notice is made, recommends and analyzes three kinds of legislation: liberalism, agreelism, and noticelism, points out that so called "Liberalism" is questionable. Because of the restrict of validity to the debtor ,this legislation should be called "Quasi-noticelism"; Agreelism is only accepted by our General Principal of the Civil Law and the Law on Economic Contract involving Foreign Interest, it has been denied by theory research and legislation practice. At the same time ,noticelism take into account the creditor’s freedom of assign creditor’s rights and the debtor’s related right, so it is generally accepted by most counties. Meanwhile, this chapter also discusses the rules on debtor’s right to defend and set off, ostensible assignment.Chapter 2 mainly studies the validity of the notice to the third party except debtor. This part centers on the priority of multi-assignment, recommends and analyzes three legislations in the continental law system and the Anglo-American law system: the priority of assignment time, the priority of notice, the priority of register. In the end, considering the system effect of property alteration and the pros and cons of each priority, we suggest that our coming legislation should adopt the priority of "notice priority + register priority’": ordinary named creditor’s rights should be subject to the rule of notice priority, and financial collection of creditor’s rights should be subject to the rule of register priority.Chapter 3 mainly studies the factors which affect the validity of the notice. It clears that subject should include assignee except for grantor. Relative usually is debtor itself, but there are some special circumstance, especially in the circumstance that the number of the debtor is big, these circumstances will be summarily discussed. The form of the notice should basically be determined by the parties themselves, but in view of the power of the evidence, it may be in written way. If the time of the notice is different, it will lead to different consequences. The notice should be made in the reasonable limitation after the assign agreement take effect, on ordinary circumstance, court notice should not be permitted. This part also discusses whether the notice of the assignment of the creditor’s rights could lead to interruption of limitation of action.

Claims and notify the efficacy study

Abstract

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