Thesis On Transference Of Creditor's Rights Determined By Civil Judgment

As a kind of property right,the creditor's right is transferable,and the obligee has the right to dispose of it without violating the mandatory provisions,but whether the creditor's right determined by the civil judge has transferability or not,Whether in theory or in practice,there are disputes,In particular,after the Supreme Court issued the"approval of the parties to transfer the creditor's rights confirmed by the judgment after the judgment came into effect in 2011,and the transferee of the creditor's rights did not accept the judgment,"whether or not the people's court should apply for retrial of the judgment,the controversy became even greater.The practice of refereeing is different and the phenomenon is serious.There is a conflict between the negative view of transferability of creditor's rights and judicial res judicata,which obstructs the channel of creditor,s rights,and leads to the contradiction between the free transaction of creditor,s rights and the social order,so it is not advisable.The affirmation of transferability of creditor' s rights confirmed by civil judgment not only accords with the practice of comparative law,but also has legal basis.The creditor,s rights belong to private rights,the parties have the right to dispose,the effective judgment confirms that the assignment of the creditor's rights is a civil legal act,which can be prohibited without explicit law,and the assignment of the creditor's rights conforms to the nature of private rights and civil legal acts.Confirmation by the referee that the assignment of a creditor,s rights conforms to the contracting purpose of the parties;the execution of the transfer of the creditor's rightsThe expansion of the force of execution is one of the legal bases for the transferability of the claims recognized by the civil adjudicators.The judicial interpretations of the Supreme Court on the enforcement work tend to be positive.The transferee of the creditor,s right has the right to be the executor of the application because the contradiction between the transferability of the creditor's rights and the existing civil execution procedure can be solved.The assignment of creditor's rights recognized by civil judgment should also be restricted,including the premise that the creditor's rights are transferable,the transferee and the transferor should agree on the transfer of the creditor's rights,and the transfer of the debt confirmed by the civil judgment should follow the legal form;The validity of the assignment of creditor,s rights determined by the referee lies in the right of defense enjoyed by the debtor to the transferee in the whole process of assignment,and the transfer of the rights and priority rights with the transfer of the principal creditor,s rights.In the process of system construction,we can construct the debtor's prior transfer right according to the preemption right,which is helpful to simplify the legal relationship and promote the realization of creditor,s rights.After the debtor chooses to exercise the prior assignment right,the original creditor's rights and liabilities relationship can be established.For the confusion is destroyed.The debt confirmed by the civil judgment is the creditor's right determined by the lawsuit.It is not necessary to judge the other party's execution through the litigation request,but only to apply for the debtor to pay off or apply to the court for enforcement according to the original judgment.In the process of transfer,the transfer of the debt confirmed by the civil judge should first pay attention to the appropriateness of the transferee and the risk of public power intervention by the right transferee.In order to prevent the difficulty of execution,the transfer of debt confirmed by civil judgment provides development funds for small and medium-sized enterprises.