The Research On The Multiple Assignment Of Creditor’s Rights

With the high development of business and the strong need of economic life,now the prohibition of the transfer of creditor’s rights is history and all countries allow the assignment of creditor’s rights.Because the creditor’s rights itself don’t have full publicness as a relative right and it will bring great economic benefits when the transfer of creditor’s rights happens,it is often seen that when a creditor has already made a contract for the assignment of a creditor’s right,he also takes the same creditor’s right as the subject matter and signs the contract for the assignment of the creditor’s right again with other assignee.The academic circles call it the multiple assignment of creditor’s rights.However,because of the vagueness of our country’s legislation,theoretical and practical fields have not been agreed on some questions,like "when is the creditor’s right assigned" or "who can get the creditor’s right when the multiple assignment of creditor’s rights happens".In the view of interpretation,there are two opinions about the time of assignment of creditor’s right: "the time when the obligor gets the notice of assignment of creditor’s right" and "the time of the establishment of a contract for the assignment of creditor’s right".And in our practices,about three kinds of treatment have been formed: "the time when the obligor gets the notice of assignment of creditor’s right","the time of the establishment of a contract for the assignment of creditor’s right" and "the time when the obligation of the assignee is completed ".It is hard to agree with the third opinion because of no law and no supporters.And the first two opinions all have shortcomings,but in the view of interpretation,it is more appropriate to adopt "the time of the establishment of a contract",especially as the general theory.So it should be considered that the current law adopts "the time of the establishment of a contract".In our practices,about four kinds of treatment have been formed: "the mode of time-first","the mode of notice-first","the mode of notice" and "the one who did not belong to a malicious collusion gets creditor’s right ".However we can only make two legal explanations: "the mode of time-first" and "the mode of notice-first".We don’t adopt "the mode of notice",because "the mode of notice-first" is more appropriate than it.It shows a fact that the judicial practice in our country is not unified with the standard of judging the multiple assignment of the creditor’s right.The reason behind this is that according to the current law,although the fifth chapter of the contract law stipulates how to change and transfer the contract,the law does not specially set up the counter requirement of the third party other than the debtor.So the academic circles make two legal explanations,one is that no mention should be interpreted as no need to meet the requirements of confrontation can take effect,this explanation also matches the legal nature of the assignment of creditor’s rights in logic;another explanation is that it belongs to a legal loophole.The motivation to make such an explanation lies in the situation that the transfer of creditor’s rights is not public,and we need a certain protection for the other transferee after the transfer.But in the view of interpretation,it is more appropriate to make a legal explanation for the absence of legal loophole.Therefore,it should be considered that the current law adopts the "the mode of time-first".Although the interpretation of the current law should draw the conclusion "the mode of time-first",the fact that theoretical and practical fields have not been agreed on this shows that the disadvantage is unacceptable,after all it completely ignores the interest of the assignee in the rear position.Throughout the legislative modes in different countries,we can find three modes which attempt to take into account theinterests of the bona fide assignee: "guarantee mode","registration and notice parallel mode" and "registration mode".The guarantee model adopted by the new French civil law is well compatible with the "the mode of time-first",which has played a certain role in protecting the bona fide assignee and pointed out a new path for the protection of the interests of the bona fide assignee.The "registration and notice parallel mode" is not suitable for our country because our country’s law isn’t appropriate to adopt "the mode of notice-first",but we can draw lessons from it.As for "registration mode",the electronic creditor’s right mode in Japan has many advantages,but it still needs practical observation and experience accumulation.So we can’t draw on it directly.And the American law stipulates "registration mode",but it limits the types of creditor’s right.This thought is worth being considered in our civil law when considering the "registration mode" in the future.These extraterritorial legislation modes all have considerable inspiration value for giving consideration to protecting the interests of bona fide assignee in the premise of "the mode of time-first".