Creditor's Right To Rescind In Contract Law

　　 First, the preservation of debts and the right to revoke creditors.

　　 (1) the significance and existence value of debt preservation

After the creditor's right relationship is established, the debtor's unspecified property becomes the general guarantee for creditor's compensation. As a debtor, the unspecified property, including tangible and intangible property, is regarded as "responsible property". Any change in the value of the liability property will affect the opportunity to claim compensation. In particular, when the value of the liability property is reduced unreasonably, the risk that the creditor's right can not get full compensation will increase, thereby endangering the legitimate interests of the creditors. In order to prevent the debtor's responsibility and property from being unfairly reduced and to ensure the legitimate interests of creditors, the civil law only stipulates a corresponding system of debt preservation.

The creditor's right is the right of claim, and the debtor's guarantee is realized by all his property as creditor's rights. When a creditor realizes his rights, he must rely on the debtor's behavior. The creditor can not directly control the property of the debtor and the interests enjoyed by the debtor. This is determined by the nature of the non controlling right of the creditor's rights. Because the creditor's right does not have the domination of the debtor's property, when the debtor makes his property or gives up his right, the creditor's rights can not be effective with the assignee (Beneficiary) of the property with the transfer of the property or the waiver of the right. This attribute of creditor's rights makes the debtor have the opportunity to dispose of property and cheat the creditor, so as to achieve the purpose of evading creditor's rights. Even if the debtor has enough property to pay off the creditor's rights, the creditor's creditor's right still has the danger of not being realized because of the chance of the debtor's giving up property or giving up his right. In order to prevent the debtor from improperly disposing his property or rights and damaging the interests of creditors, the civil law reclaims creditors by the creditor's right of revocation.

The creditor's right to rescind enables the creditor to withdraw the effect of the transaction between the debtor and others (improper disposition of property) through the court. The result is that the property or interest acquired by the third party who is traded with the debtor loses its legal effect, and the third party's return to the interests that it does not gain has, to a considerable extent, made up for the inherent defects of the non dominant (relativity) of the creditor's rights. In this sense, the existence value of the right of revocation of creditors is an effective expansion of the effectiveness of debt.

　　 (two) creditor's right of cancellation in legislation

The preservation system of debt originated from the ancient Rome law. In ancient Rome, there was a actio pauliana system, but the system was only for the debtor's bankruptcy system to relieve creditors from the fraudulent practices of the debtor, that is, the debtor's disposal of property, resulting in his inability to pay debts or expand the scope of insolvency. Creditors can request the cancellation of the action. This system provides a reference model for future generations to stipulate the right to rescission in bankruptcy law. When the ancient Rome law developed into the era of Charles Ding, the revocation action no longer distinguishes debtors from bankruptcy, generally acknowledges the creditor's right to revoke, and applies free revocation and paid revocation with the standard of the debtor's behavior free and paid. If the debtor's behavior is paid, the creditor's right to exercise the right of revocation is the requisites who have the intention of deceiving the creditor and the relative person knows the facts of fraud. The creditor's right of revocation in the ancient Rome law emphasizes the subjective elements of the creditor's right to exercise, that is, the debtor has the intention of deceiving the creditor and the relative person knows his fraud facts, which has a considerable impact on the creditor's right to rescind in the civil law of later generations.

The traditional civil law in Germany, Austria, Switzerland and other countries, because of its relatively complete enforcement system, can protect the interests of creditors, and does not stipulate the right to revoke claims. However, the modern civil law of these countries absorbed the reasonable elements of the revocation action of the ancient Rome law, and stipulated that the creditor had the right of rescission. For example, the German bankruptcy law stipulates the right to rescind the bankruptcy. In addition, a separate act provides for the cancellation of legal acts other than bankruptcy. Austria and Switzerland also have the creditor's right of cancellation in the separate act.

The French civil law has inherited the revocation action in the ancient Rome law in modern times, which stipulates that the creditor has the right of rescission. The 1167th provision of the French Civil Code stipulates that the creditor can lodge a complaint against the debtor's use of fraudulent means to infringe upon his rights in his own name. The civil law of Spain, Italy, Japan and many other countries affected by the French civil law stipulates the system of creditor's right of rescission. For example, the 2901st provision of the Italy Civil Code stipulates that if the debtor knows that his conduct damages the interests of the creditor or his prearranged arrangement has the purpose of deceiving the creditor, the creditor may claim to declare that the debtor's damage to his interests is invalid. The debtor's conduct is a compensation action, and the third party knows the damage of the creditor and participates in the prearranged fraudulent act of the debtor. The 424th provision of the Japanese Civil Code stipulates that creditors can request the court to revoke the legal act of property rights subject to the debtor's knowledge of his creditors. However, those who are benefited or transferred for profit because of the act are not limited to those who do not know the facts of infringement of creditors at that time.

Editor: vivi