The Research On The Legal Problems About Creditor’s Rights’ Multiple Assignments

It is not clearly claimed in the Contract Law of China what priority order ofevery assignee should be considered in the multiple assignments obligatory rightcession. In this passage, on the basis of the theory, character and component elementsof obligatory right cession, the theory and causes of multiple assignments obligatoryright cession, the author introduces some thoughts and proposals to the legislation andpractice of multiple assignments obligatory right cession and setting the priority orderof every assignee. According to our Chinese regularization demands and related rules,the author sets the rules of multiple assignments obligatory right cession and thepriority order of every assignee that suit well to the practice of our China andmeanwhile emphatically describes multiple assignments obligatory right cession andthe guarding of related risk.In the first part of the thesis, the theory, character and component elements ofobligatory right cession, the theory and causes of multiple assignments obligatoryright cession will be described and concluded: obligatory right cession belongs to thedebts’ transfer and is one of the transfers of debt following the process of laws. In ourChina, obligatory right cession was defined as factual behavior, which contains theexistence of creditor’s rights alienability, the consensus of obligatory right cession, thedisposition right of creditor (except the obligatory right of securitization production,such as bills and warehouse receipt). Meanwhile, whether obligatory right cession suitthe bona fide acquisition system and the non-reason problem of obligatory rightcession is briefly discussed, generally our China adopts the reason-based principles,and in common obligatory right cession, the invalidation and revocation of obligatoryright cession contract and so on do not have any obligatory right cession’s law effect.What’s more, the basic theory and causes of multiple assignments obligatory rightcession are explained and briefly described.In the second part of the thesis, the rivalry elements of obligatory right cessionwill be briefly described and for the purpose of the freedom of obligatory right cession and the protection of the third dealer’s rights, it is very necessary to set therivalry elements of obligatory right cession. Meanwhile, the rivalry elements ofobligatory right cession will be divided into counter debtor elements and otherelements of the third person and be clearly analyzed.In the third part of the thesis, which is described in detail in the countries andinternational conventions on creditor’s rights and the determination of multipletransfer cases assigns priority rules, which can be divided into three categories: Aprior to time, a prior to rules; A prior to time, A prior notice; A prior registration, apriority to rules. The three kinds of rules and drawbacks, time earlier, thedetermination of the three kinds of rules have the disadvantage to the debtor and thethird person. It is also not conducive to the market transaction security of creditor’srights. Due to the objectiveness, openness, the notice has certain potency. A priornotification, efficacy priority claims multiple transfer rules shall apply. Comparedwith a prior time, efficacy priority claims multiple rules to apply, has more advantages.But due to the creditor’s rights transfer notice only against the debtor and lack thepublic property, so the legitimate interests of the debtor outside of a third party cannotbe effectively protected. And registration to the debtor and the third person have apublic priority with a strong credibility, which can effectively avoid the behavior ofthe unfaith debtor or the damage to the interests of a third person by the transferor. So,from this aspect, in a prior registration, a priority rule is better than that of a priornotification, validity precedence rules. But because of the diversity of creditor’s rightsand it has a huge number, which make each creditor’s rights to register lackingoperability.In the forth part of the thesis, which brief analyses the legislation of multipleassignment in our country and dispute from scholars. At present, our country lacks ofmultiple assignment system, and the opinions put forward by scholars lacks offeasibility. According to the law-making stipulation of multiple assignment, I putforward to my legislative recommendations, in which I think creditor’s rights that canbe public noticed like the way the property changes, such as the existing assignment,the assignment of creditor’s rights guarantee, and the assignment of accounts receivables should apply to the rules of priority of registration and effect. When itcan’t suit the publication of payment and registration, should apply to the rules ofpriority of requisition and effect. The requisition of first assignment of creditor’srights or the debtors admit to know the fact that the assignment of creditor’s rightsfirstly, the benefits of this transferee should get priority protection, which can’t carryon the assignment of public creditor’s rights by registration and payment, what’s more,it doesn’t give out the requisition of assignment of creditor’s rights, and the debtorsalso don’t admit it, so according to the valid time of contracts of cession of theobligatory right between the transferee and the transferor, we can confirm the priorityof transferees in multiple assignment. On the other hand, I put forward somesuggestions about the risk control of multiple assignment, such as the right to requestthe assistance,“claims of superficial assignment” and the licensor’s right for warrantyagainst defects, so that protect the legal benefits of transferees.