The Effectiveness Of Express Contractual Provision Against Assignment

The "assignment" in the agreement on the prohibition of assignment of creditor’s rights refers to the act of causing the creditor to change through legal acts."The parties agreed that the assignment shall not be transferred" should be expanded to include an agreement that restricts the assignment of creditor’s rights.The effectiveness of the prohibition affects the interests of the debtor and the realization of the free circulation value of the creditor’s rights.It also involves the creditor’s right to freely dispose of the property and the trust interests of the bona fide assignee.Because of the differences in the legal effects of the non-transferable claims based on the nature of the application and the agreed non-transferable claims,it is necessary to distinguish between the two.If the change of the creditor will result in a change in the content of the creditor’s rights or have a substantial impact on the interests of the debtor,the creditor’s rights shall be deemed to be non-transferable by nature.The "German Civil Code" has an absolute limitation on the effect of the prohibition on the assignment of creditor’s rights.It is a remedy for the drawbacks of the effective system of the creditor’s rights assignment,which is not applicable in our legal system.When the creditor transfers the creditor’s rights in violation of the agreement,no matter whether it is a monetary or non-monetary creditor’s right,the prohibition of the transfer agreement will not affect the effectiveness of the assignment contract,nor has the effect of restricting the transfer of the ownership of the creditor’s rights.The “not to confront bona fide third parties” in the first paragraph of Article 545,paragraph 2 of the Civil Code should be interpreted as the debtor’s right to refuse performance against malicious third parties.Specifically,a malicious third party can obtain the creditor’s rights,but the debtor can claim to refuse to perform it.Only in this way can it be consistent with the evaluation of the system after the second paragraph of Article 545.In order to avoid getting into a performance dilemma,it should be considered that the malicious transferee has the right to request the debtor to perform performance to the assignor.When the debtor refuses to perform,it shall be regarded as a waiver of the right to refuse performance.In order to protect the interests of the debtor,the “same contract” of Article549,paragraph 2 of the Civil Code should be interpreted broadly.When the objection to the creditor’s rights and the causes of the assigned creditor’s rights are economically or naturally related,the debtor can follow suit.This clause claims an offset against the assignee without being subject to the conditions of paragraph 1.In addition,when the creditor’s change causes a change in the place of performance,which may increase the cost or risk of performance,the debtor should be allowed to assert a defense of identity.For the debtor’s unprofitable unmeasured in terms of money due to the assignment of claims,such as the complexity of repayment procedures and the complexity of debt management,we can learn from the provisions of Article 466-2 of the "Japanese Civil Code" to grant the debtor the right of deposit.The agreement on the prohibition of assignment of secured creditor’s rights is special.Compared with the debtor,the guarantor has a higher interest requirement for the prohibition of assignment.When determining the effectiveness of the prohibition agreement between the guarantor and the security right holder,the guarantor’s interest in leaving the guarantee responsibility and the transferee’s interest in realizing the creditor’s rights should be balanced..This article believes that when the assignee is in good faith,even if there is an agreement to prohibit assignment,the security right can be transferred together with the principal claim.When the assignee is malicious,because the assignee does not have a trust interest worth being protected,the security right will not be transferred with the principal claim.