| Article 545 of the Civil Code provides for the assignment of credit,of which the second subparagraph of the first clause and the second clause are about the restriction of the special covenant on the assignment of credit,taking into account the important role of the circulation of credit in the social economy,and to a certain extent,improving the restriction of Article 79 of the Contract Law,but the effect of the restriction of the special covenant on the assignment of credit is not considered to be completely clear and cannot completely solve the confusion in judicial practice regarding the determination of the effectiveness of the special contract for the restriction of the assignment of credit.The change of the restriction on the assignment of credit is another adjustment of the balance between the external circulation of credit and the internal relativity of credit.The value of the circulation of money credit is high,and the restriction on the assignment of credit for itself is given by the Civil Code with no external effect against third parties,but it does not mean that the internal effect of the restriction on the assignment of credit is invalid.The realization of the circulating value of monetary claims is subject to the independence of monetary claims,and monetary claims that do not have independence cannot be circulated.Only independent monetary claims can be circulated in order to guarantee the efficiency of transactions and ensure that the interests of the debtor are not excessively damaged.Therefore,the scope of application of Article 545 of the Civil Code regarding the restriction on the assignment of credit should be limited,and only independent monetary claims can be applied.Before the issuance of the Civil Code,the external effect of the restriction on third parties was not stipulated in the Contract Law,but the new provision on the external effect of the restriction on third parties in the second subparagraph of Article 545 of the Civil Code is too simple,and the legislative model adopted needs to be further clarified,and a distinction should be made between the legislative models of monetary claims and non-monetary claims.Although the effect of the restriction on the assignment of nonmonetary claims is not against bona fide third parties,the criteria for judging bona fide third parties are not clear,and it is not reasonable to apply the bona fide acquisition system by analogy,so the adoption of the exterior right theory as the criteria for judging third parties is more consistent with the legislative purpose.In the case of non-monetary claims with restriction of claim assignment,after the creditor assigns the claim to the third party,the debtor can exercise the right of repudiation and the right of bad faith defense against the assignment of the credit in violation of the special agreement.In addition,the debtor can also express consent after the assignment of the credit.In order to prevent the debtor from obtaining excessive undue benefit after the assignment of the restriction claim,if the debtor gives consent to the assignment of the credit,it should be interpreted as a release of the debtor from the original creditor’s obligation not to assign the credit,and the restriction of the assignment of the credit will cease to be effective from then on. |
