On The Validity Of Contractual Prohibition Of Assignment

In order to avoid the creditor’s rights being disadvantaged by the debtor,the debtor may agree with the creditor that the creditor’s rights cannot be transferred.This leads to the special prohibition on the assignment of creditor’s rights.Since Article 79(2)of China’s Contract Law stipulates the prohibition agreement,its effect is not clear.The article analyzes China’s effectiveness profile and various effectiveness theories,and finally determines that Chinese law should distinguish between monetary claims and non-monetary claims with different effects.The first part discusses the current status of the prohibition of special treaties in Chinese law,including some aspects of legislative level,judicial practice,theoretical doctrine,and factoring practice.In the current legislation,Article 79(2)of the Contract Law and the Supreme People’s Court’s Interpretation of Certain Issues on the Application of the Guarantee Law tend to recognize the external effect of prohibiting the assignment of creditor’s rights,resulting in the invalidation of creditor’s rights.It is called absolute effect.However,from the perspective of the legislative process,legislators have also considered the effectiveness of confrontation,that is,the increase of the prohibition on the assignment of creditor’s rights against the assignee in good faith.In judicial practice,absolute force is the most common,and a few judges will apply countervailing force.The theoretical community generally supports the effectiveness of confrontation and believes that the effectiveness of confrontation can take into account all interests.In factoring practice,the judges of the Supreme People’s Court clearly put forward the adversarial effect.It can also be seen in some local courts’ views that the assignment of a violation of the prohibition on the assignment of a special creditor’s right is invalid only to the debtor and can be understood as a relative effect.The second part focuses on the absolute effect,analyzes the "content theory of rights" that provides a theoretical basis for absolute effect,and the difference from the effect of prohibiting the assignment of real rights;demonstrates the absolute effect from the nature of the creditor’s right,the principle of autonomy of the will,and the protection of the debtor The legitimacy of the law;reflection on the problems of excessive protection of the debtor and limitation of the liquidity of the creditor’s rights,which are in absolute effect.Based on these issues,it is argued that the absolute effect of Article 79(2)of the Contract Law should be limited to the scope of application.The third part is centered on the remaining confrontational effectiveness,relative effectiveness and debt law effectiveness.In the adversarial effect,the issue of whether the assignee’s determination in good faith requires no fault,the distribution of the burden of proof,and the dispute over the validity of the real right and the validity of the creditor’s right when the assignee is malicious.In comparative law,German law doctrine claims relative effectiveness based on Article 135 of the BGB,as well as Article 354 a of HGB and Article 466 of the revised Japanese Civil Code.However,the relative effect will cause the split of all states of creditor’s rights,so the application in our country’s law should not be considered.The validity of the debt law does not recognize the external effect of prohibiting the special contract,but only recognizes its internal effect,which is in line with the interests of the parties and the principle of relativity of the contract,and is more conducive to the smooth circulation of creditor’s rights.The fourth part discusses the choice of the effect of prohibiting the assignment of creditor’s rights in the law of our country.The approach recognized in this article is to distinguish between monetary claims and non-monetary claims.Various effects focus on the protection of interests.In addition,monetary claims and non-money claims have different attributes.Money claims have stronger liquidity and property rights attributes.It is necessary to distinguish between different effects.Factoring involves the transfer of claims on money.Based on international legislative trends and various effects analysis,it can be seen that the effectiveness of the applicable debt law is more appropriate.As for non-monetary claims,in order to balance the interests of the debtor and the good faith assignee,it should choose the effectiveness of confrontation.