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Study on the Creditor Repeal Right

Author: MengQingHong
Tutor: PengChengXin
School: Jilin University
Course: Civil and Commercial Law
Keywords: Creditor Right to Revocation
CLC: D923
Type: Master's thesis
Year: 2008
Downloads: 136
Quote: 1
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Abstract


This thesis mainly talks about the law problems of creditor’s right to revocation. This thesis is divided into three parts.In the first part, the author mainly introduces the concept and characteristics of right to revocation, the establishment purpose of right to revocation and the nature of right to revocation. On the nature of creditor’s right to revocation, the academic field has a lot of difference opinion, mainly about persuading right, forming right and compromising.Firstly, it is the concept and characteristics of right to revocation. So called the right to revocation creditor, also is called abolishment and ceasing right. It is also the right when creditor’s property is damaged and asks for the court to repeal. The right to revocation includes: 1.Creditor’S right to revocation is affiliated entities claim the right to. 2. Creditor’s right to revocation of the debt as one of the ways to preserve its security and the debt is secured with a special distinction. 3. Creditor’s right to in the implementation of the revocation of the debtor’s property to reduce their positive behavior in order to exercise. 4. Creditor’s right to revocation of the scope of application, including all claims, infringement of debt, unjust enrichment and no debt as a result of the management of debt , the implementation of the victims of the debtor and creditor’s rights and property of a positive behavior when disciplined, creditor can be exercised in accordance with the law right to revocation.Secondly, right to revocation system for the purpose of the establishment. Right to revocation system set up primarily to protect the contract claims. Systems as the preservation of the contract, right to revocation of the contract is to ensure the fulfillment of obligations to protect the interests of the creditor an important measure. Debtor and the creditor’s rights and effective implementation of Is the realization of an orderly market economy. Only the full protection of the interests of the creditor, debtor to urge the effective implementation of obligations in order to gradually form a good system of credit and business ethics, and should have a contractual relationship of binding, the order of the transactions Can be formed.Thirdly, it is right to revocation of nature. On the creditor’s right to revocation of the nature of the academic circles there is considerable disagreement, mainly the right to request that the right to form a compromise and said that the theory of the three. In this paper, it makes a detailed description of the theory of the three, as well as Analysis of the theory. In my view, creditor’s right to revocation of the nature of the right should be formed. It should be emphasized that, creditor exercise of the right to revocation upon the request of the beneficiaries of the return of property is not based on the right to revocation, but on the basis of creditor enjoyed by the substantive law on the right - and the claims procedure law on the right - the right to enforce. Creditor exercise of the right to revocation of the effectiveness of the debtor is the only beneficiaries of the claims made on the biological premise.In the second part, from the objective and subjective aspects of the right, discusses the establishment elements of right to revocation.Creditor’s right to revocation is the so-called debtor revoked. The responsibility to recover from the assignee of property has been set up on the legal relationship to be destroyed, so that the debtor and the assignee should not have taken place between some events, the great impact. So, creditor’s right to revocation of elements should be strictly limited, the creditor in order to avoid the abuse of right to revocation, to undermine the security transactions. From China Contract Law article 74, in line with the basic theory of civil law on the creditor ’ s right to revocation of the elements. However, the scope of application of this provision is too narrow; it is difficult to play the system to preserve the effectiveness of the contract. Therefore, it is necessary for the creditor’s right to revocation of the elements to be explored. The elements of the creditor’s right to revocation include the objective and subjective elements of the elements. In my view, right to revocation of the objective elements, includes the following four aspects: first, the debtor must have a certain degree of implementation of the action property; Secondly, creditor of the debtor to enjoy the validity of claims; thirdly, acts of the debtor’s creditors in the wake of the establishment of an effective and continue to exist; Finally, it is the debtor’s behavior to be harmful to the creditor’s debt. Right to revocation of the subjective elements include: the debtor’s malicious and deliberate the assignee. Right to revocation of subjective elements, includes creditor to exercise right to revocation of the debtor to be the implementation of its action property of the debtor or the assignee and the implementation of civil malicious acts with the subjective. Of course, whether or not the subjective element must be the first to distinguish between the implementation of the debtor’s payment is the act of punishment or acts of gratuitous punishment. The right to revocation elements of modern civil law constitutes aspects of the theory. It is paid to the subjective act of malice for the establishment of the right to revocation elements; act of free will only be able to meet the objective elements of the establishment of the right to revocation. Compensated for the punishment of acts of withdrawal, must be based on the debtor and its first three in the implementation of the transactions when they have hurt in the elements for the creditors intentional. China Contract Law No. 74 is followed the theory.In the third part, from the exercise of the right to revocation of the main, the object of the exercise, exercise, exercise area, as well as the effect of exercise during the exercise, and so on, the exercise of the right to revocation of a comprehensive system ,make an in-depth study.Firstly, it is about the right to revocation of the main exercise. Creditor’s right to revocation of the main body should include any damage as a result of the debtor and its creditors conduct damage to the creditor. Creditor for the majority of the right, can exercise together, may also exercise its own independent. However, a creditor filed against the withdrawal, the other creditor may not be re-filed. Due to the exercise of the right to revocation of the purpose is to protect the common interests of all the creditor, not only the individual interests of the individual creditor, the exercise of the right to revocation of the creditor not because of their independent exercise of the right to revocation, and that alone entitled to the restoration of its property interests. But after the declaration of insolvency by the debtor, the insolvency administrator should exercise the right to revocation; the creditor shall not exercise its right to revocation.Secondly, it is about the right to revocation of the object of the exercise. Creditor’s right to revocation of the object is the debtor or his agent to implement the damage claims. If the debtor or the debtor will serve as an agent of the general security of the establishment of property mortgages, a gift to others For the benefit of the new debt, and other subject matter. Debtor, but the punishment is the property of others and when there are objects, right to revocation of the object is the only property of the debtor should have. A third of its property for the debtor provides the security act beneficial to the debtor, not to withdraw.Thirdly, it is the right to revocation of the exercise. Creditor’s right to revocation has been set for the effective conduct to be banned for a third party interest is significant. Therefore, right to revocation must use force countries to their creditor In the name of the way through the proceedings, the court decision through the implementation of the creditor to protect the legitimate rights and interests, rather than by the creditor free exercise. The creditor when the right to revocation of the debtor proves that the claims for harmful behavior are an adequate alternative.Fourthly, it is about the right to revocation of the scope of the exercise. on the exercise of the right to revocation of the scope of China’s Contract Law Article 74, paragraph 2: right to revocation of the exercise so as to the scope of the creditor claims are limited, right to revocation of the exercise As a way to preserve the debt in real terms is to limit the debtor from disposing of their property, therefore, in order to prevent the debtor from disposing of property, restrictions on improper conduct, the law provides that the exercise of the right to revocation to the scope of the creditor claims is limited. But it is worth exploring the question .The exercise of the right to revocation to the scope of the creditor claims is limited; this is what limits the exercise of the right to revocation of the creditor claims is limited to a general creditor of the whole, the total amount of debt limit? The author believes that creditor should be based on their claims exercise of the right to revocation.Fifthly, it is about the right to revocation of the effectiveness of the exercise. Creditor’s right to revocation of the effectiveness of the decision of the court determined in accordance with the law have effective on the creditor, debtor and the third the per capita. Debtor revokes upon the conduct and behavior from the beginning of the loss of law, in particular for the effectiveness of the debtor, with regard to the effectiveness of the beneficiaries, for the effectiveness of the assignee for the effectiveness of the creditor, the revocation of res judicata in the appeal. Sixthly, it is the right to revocation of the exercise period. On the right to revocation of the exercise period, there has been denounced in addition to the period of limitations, and both claim. Trial practice, with regard to the one year period of the other controversial issues, is a year from the period when the date? The author believes that, Contract Law required by section 75 of the one year period of exclusion is in addition to the period. Contract Law year period from the creditor knows or should know that the subject of withdrawal from the date of the calculation. Then, it is from the creditor who knows or should have known that the debtor from disposing of property from the date of calculation, or know that the creditor or the debtor should be aware of the disposition of property claims and the victims of acts of the day computing? The author believes that from the creditor who knows or should have known the debtor from disposing of property on the date the calculation is more appropriate properly.Through more than a few parts of the study and discussion, the author describes the theoretical circle in the larger debate about the right to revocation of the establishment of the elements, right to revocation of the main object of the exercise, right to revocation of the exercise, the scope and effectiveness of the period. These all has an important role a major judicial practice of the right to revocation of.

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