The Assignment Of Creditor's Rights

Focusing on the effect of the notice of assignment and following a systematic reasoning approach, this author intends to analyze the following problems in light of the methods of comparative analysis, historical analysis, and law interpretation: (1) the nature, constitution, and the principle of abstraction of assignment of rights; (2) constituents to make transfer of rights take effect, the legal effect that notice of assignment has, the rule of priority in multiple assignments; (3) legal models on anti-assignment clause as well as determinations about the effect of assignment of after-acquired rights in both continental law countries and common law countries, and the fundamental basis on which China could make a reasonable choice; (4) assignor's obligation to warrant against defect, debtor's right to defend, and the protection of assignee's trust interests, which are the rules to reasonably balance interests among parties to assignment of rights.As the origin of continental law system, Roman law established some basic rules on assignment of rights. Thus, Chapter 1 firstly studies the historical evolution of assignment of rights in Roman law. As we all know, the prerequisite for the system on assignment of rights to be established is that credit loses its personal nature while obtaining the independent status of property. In order to realize the assignment of rights, the Romans took the following methods in turn: novatio, litigation proxy, the notice of litigation, and the inheritance of creditor s'rights. And in Justinian times, the Romans had gradually recognized general assignment contract. The evolution of the system on assignment in common law system bears much resemblance to that in Roman law.Chapter 2 firstly establishes the definition and scope of assignment of rights. This author holds that there is affiliation between assignment of rights and transfer of rights, while the former is only a part of the latter, so the two concepts should not be confused. Making use of the approach of combining logics with value methods, this chapter then analyses the theory on real right act and clarifies the fault in the so-called generally recognized doctrine of"the assignment of rights has the nature of abstractness"as well as clearly points out that it is meaningless for ordinary assignment of rights in civil law to adopt the principle of abstractness.Chapter 3 focuses on the object of assignment. This chapter elaborately studies the different determinations on the effect of anti-assignment clause as well as assignment of after-acquired rights in both continental law countries and common law countries. After analyzing and comparing the aforesaid different determinations, this chapter seriously reflects on the provisions in our prevailing law, puts forward some suggestions to improve it, and then explains the fundamental basis on which China could make a reasonable choice.From the perspective of the effect of the notice of assignment, Chaper 4 make a new comment on the effect of the notice of assignment in terms of difference between assignment of rights and assignment of tangible property. This chapter criticizes the logic contradiction inherent in the following views prevalent in some scholars:"Upon the contract on assignment of rights coming into existence and effect, the pertinent creditor's right transfers from the original creditor (assignor) to assignee, and thus the assignee becomes a new creditor taking the shoes of the assignor in law", and consequently argues to the contrary that the notice of assignment is the constituent to make transfer of rights take effect. After that, this chapter makes a thoroughly comparative law research on priority rules and the theoretical basis thereof in continental law countries and common law countries, on the basis of which this chapter reviews some views in China's pertinent academe and draws the following conclusions: these views are incompatible with China's pertinent legal system, so in China the should-be rules of priority in case of multiple assignment of rights is"first the notice, first the right", which is the inevitable conclusion drawn by one who truly follow the principles and rules in the theory on civil law interpretation; the conflict of rights between assignee and assignor's other creditors should also be solved in the same principle.Since the protection of assignee's interest directly relates to the transaction safety of assignment of rights, Chapter 5 focuses on the study of following problems: assignor's obligation of warranty against defects, the protection of assignee's trust interest, the protection of assignee's interest while debtor executes his right of set-off. Consequently, this chapter puts forward some countermeasures.Centered on the principle that debtors should not suffer from assignment of rights, Chapter 6 discusses the rules on debtor's right to defend and set off, partial assignment of rights, ostensible assignment, so as to provide full protection to adebtor who passively accepts the fact of assignment of rights.Chapter 7 makes a thorough study on the legal models and their theories about whether assignment of contractual rights has some effect on arbitration clause in the contract, on the basis of which this chapter argues that China should stipulate that arbitration clause should be assigned together with contractual right and bind assignee, which embodies the trend in international arbitration.During analyzing pertinent systems on assignment of rights, this author has learned the following knowledge: when interpreting existing law or suggesting about new legal provisions, one should follow the principles in the theory of civil law interpretation, and his suggestions should be subject to existing legal system. Only by respecting existing legal system could one make reasonable explanations that contribute to the proper application of law, while arbitrary explanations despite of logic disharmony should be absolutely forbidden.