The Second And Retrial Cases Of Creditor's Rights Of Revocation In Hunan Province

Over the past three years,the number of second instance and retrial cases for creditor revocation disputes in Hunan Province has increased steadily,but the percentage of cases received has decreased slightly.Among the 122 cases heard by Hunan Provincial Intermediate Court and College in the past three years,16 cases have been sent back for retrial and 19 cases have been retried.The case is closed by mediation or withdrawal.Apart from the above-mentioned cases,58 cases were maintained in the second instance and 11 cases were changed.Statistical analysis of these cases shows that the controversial focus of the parties is mainly concentrated on the following aspects.First,there are inconsistencies in the understanding of several time points in determining the constituent elements of the creditor's revocation right,including the time of occurrence of creditor's rights and how to identify the time of occurrence of acts harmful to creditor's rights.The second is the allocation of burden of proof between creditors,debtors and third parties.Third,whether the divorce agreement can be revoked,how to revoke and the legal consequences after revocation.The above-mentioned focus issues involve the criteria for creditors to exercise the right of revocation so as to protect their rights and interests,and how to choose and protect the interests of which party in the face of the conflict of interests between creditors' rights and the stability of transactions between debtors and third parties.The determination of the time when the creditor's rights occurred.If the creditor's rights are formed by the agreement of the two parties,the time when the two parties reach the agreement or when one party breaches the contract is the time when the creditor's rights occur.If the debt is legal,the time when the creditor's rights are established is the time when the creditor enjoys the creditor's rights.For the determination of the time when the act of endangering creditor's rights occurs,it is advisable to adopt the viewpoint of the dichotomy of debt and property,and regard the time when the real right changes as the time when the act of endangering creditor's rights occurs.As for the distribution of burden of proof,the court should maintain thebalance between maintaining the stable economic efficiency development of transactions and social order fairness and justice to distribute the burden of proof.In the general case of malicious debtor,malicious presumption is adopted.Creditors do not need additional proof,but in a few cases,creditors need to prove their debt by proof.The obligor is malicious,and the evidence submitted by the obligor is examined by stricter criteria.To revoke the divorce agreement,we should carefully examine and measure whether the property disposal in the divorce agreement is unfair.When the agreement does harm the interests of creditors,it should be revoked to properly safeguard the interests of creditors.At the same time,we should pay attention to protecting the rights and interests of third party.