Legal Appliance And Reflection On Invalid Contract System And Creditor Revocation System

The article 52(2) of "Contract law" is related to the provisions of the contract effectiveness and article 74 of this law is about the creditors’ canceling right. Even though they belong to different systems, but in fact, they have overlap in the extension. When the debtor viciously collaborates with the third person to enter into a contract to damage the interests of creditors, the contract not only meets the conditions of invalid contract but also is in accordance with creditors cancellation right. In this case, the contract shall be declared null and void or revoked by the creditors, there is a controversy both theoretical and practical circles. Since the 20 th century, the German legal scholar proposed the "Double Effect on The Law", admitting that the cancellation of the legal behavior can produce competition with annulling the legal behavior, and on the basis of this thought, the parties concerned or the interested party may choose to safeguard their rights. The mainstream view in the theoretical circle in our country is still denying the concurrence relation between the two systems, but in the judicial practice, there is a controversy on their applicable law relationship in professional circles. Therefore, clear relationship of applicable law of two systems in the trial is very important.Through embarking from the typical cases in judicial practice and combining with the law interpretation of the invalid contract system and the creditor revocation right system, the first part of this article puts forward the problem: under the condition of the existing theory and law, whether concurrence can exist between applying to declare the contract avoided and canceling the contract? How to construct the more complete applicable law relationship?The second part introduces and analyzes the theory of the applicable law relationship between the invalid contract system and the obligee’s cancellation right system. Allowing concurrence said is based on the "Double Effect on The Law" theory, and thinks that the creditor may claim cancellation right for invalid contract. The court can quote creditorsrevocation right system as the referee basis to solve the creditor’s right of revocation litigation.Forbidden concurrence basing on “legal causal relationship” theory thinks that the invalid contract is original, absolute and deserved invalidity. So there is no need and impossible for anyone to advocate cancellation right to the invalid contract. Combining with the specific contents of the two theories and explore the nature and legal value orientation of the invalid contract system and creditor’s cancellation right system, forbidden concurrence is more reasonable.The third part studies the theory of the applicable law relationship between the two systems from the perspective of their components. The author combining with the current laws and regulations, through concrete analysis of the components of invalid contract system and the system of right of revocation, especially their subjective element and interests damage objects, clearly compares and analyzes the difference and the applicable law relations.On this base, the author provide the pros and cons of reference for creditors to choose litigation proceedings by analyzing their difference on period.The fourth part is the conclusion part to answer the question raised in the first part. On the one hand, creditors have options under the condition of the existing law. But this option is not based on "Double Effect on The Law", but only the choice of litigation strategy. The regulation of contract effectiveness has the priority on the applicable law than creditors revocation right system, and the premise for creditors to exercise the cancellation right is the valid disposition of the debtor, so even if the creditor only requires to revoke and withdraw the actions of the debtor property, the court still should review the contract effectiveness. On the other hand, to build the more complete relationships, the law should make two aspects of change. One is to narrow the explanation of the "third person" in article 52(2) for the "non given third person". The contract damaging interests of the specific third person is processed by the system of unauthorized disposition, the non-right commission system or creditors revocation right system. The second is to limit the legal consequence of creditors revocation right between creditors and the assignees. The contract between the obligor and the assignee,remains effective, so any one party not performing his obligations in accordance with the contract, need to be liable to the other party for breach of contract. It is also very important to admit that the creditor’s rights prior to the third person of the original creditor claims.