债权让与行为效力问题研究

发布时间：2018-03-27 08:34

本文选题：债权让与　切入点：让与通知　出处：《辽宁大学》2012年硕士论文

【摘要】：在现代经济生活中,作为一项重要财产性权利的债权的地位日益重要。债权让与不单在加快债权的流通性,使社会资源得到有效配置,还在促进经济增长等方面具有十分积极的作用。所以针对债权让与行为的效力问题开展较全面的研究分析具有十分重要的意义。债权让与制度的形成并非一蹴而就的,其经历了禁止、逐步放宽直至现在可以自由让与的一个漫长而又复杂的变迁过程。对债权让与制度最早的规定出现在古罗马法。目前,虽然债权让与制度已经发展成为两大法系诸国的民事立法通例,但是由于各国的立法背景、传统理论以及国情的差异,各国对债权让与行为效力的具体规定不尽相同。但是总体而言,国外有关债权让与行为效力的法律制度相对比较完善,而且学说和判例十分的丰富。而相对的来说,我国《合同法》及其司法解释尽管用专门的章节对债权让与行为进行规定,不过规定得比较笼统、宽泛,对许多关键性问题都没有涉及,如通知的效力问题、重复让与效力问题、表见让与效力问题以及连续让与效力问题等,从而导致不单是实务界还是学说理论界都存在着很大的争论,这不但不利于实际中的操作,也不利于债权的自由让与以及经济的增长。为此,本文运用比较研究、历史研究以及案例研究的方法,在介绍我国现行法中债权让与行为效力的法律依据及存在的问题的基础上,分别对典型国家或者地区的债权让与行为效力的立法例进行比较考察,从而提出我国债权让与行为的效力应当如何认定。首先,就让与通知的效力而言,它表现在三方面：一是对让与人和受让人的效力；二是对债务人的效力；三是在除债务人之外的其他第三人效力方面。其次,在重复让与情形下,应当依据通知时间的先后顺序来判断债权的归属。再次,无论让与人还是受让人进行通知,都可以适用表见让与制度,但是在产生债权表见让与效力上的通知要件的要求则有所不同。至于债务人的主观状态,应当是善意的,否则不产生债权表见让与的效力。最后,连续让与情形下,应当以已经通知债务人与否为时间点来判断权利归属。
[Abstract]:In modern economic life, the position of creditor's rights as an important property right is becoming more and more important. It also plays an active role in promoting economic growth, so it is of great significance to carry out comprehensive research and analysis on the validity of the act of assignment of creditor's rights. The formation of the system of assignment of creditor's rights was not accomplished overnight. It experienced a long and complicated process of transition, which was prohibited and relaxed gradually until now. The earliest stipulation of the system of assignment of creditor's rights appeared in ancient Roman law. Although the system of assignment of creditor's rights has developed into a general rule of civil legislation in the countries of two legal systems, but due to the legislative background, traditional theory and national conditions of different countries, However, on the whole, the foreign legal system on the validity of the act of assignment of creditor's rights is relatively perfect, and the doctrine and jurisprudence are very rich. Although China's contract Law and its judicial interpretation provide for the act of assignment of creditor's rights in a special chapter, the provisions are general and broad, and they do not deal with many key issues, such as the validity of notice. The problem of the repeated effect of transfer, the problem of apparent effect of transfer and the problem of continuous effect of transfer lead to a lot of controversy not only in the field of practice but also in the field of theory and theory, which is not conducive to the operation in practice. Also not conducive to the free transfer of claims and economic growth. Therefore, this paper uses the methods of comparative study, historical study and case study to introduce the legal basis and existing problems of the validity of the act of assignment of creditor's rights in the current law of our country. This paper makes a comparative study on the legislative cases of the validity of the act of assignment of creditor's rights in typical countries or regions, and puts forward how to confirm the validity of the act of assignment of creditor's rights in our country. First, as far as the effectiveness of notice of assignment is concerned, it is manifested in three aspects: first, the effect against the transferor and the assignee; second, the effectiveness against the debtor; third, the effectiveness of the third party other than the debtor; and secondly, the effectiveness of the third party other than the debtor. In the case of repeated transfer, the attribution of the creditor's rights should be judged according to the order of the time of notification. Thirdly, the system of apparent transfer can be applied to the notice by the transferor or the assignee. However, the requirements of notification requirements for the effect of presenting assignment of creditor's rights are different. As for the subjective state of the debtor, it should be in good faith, otherwise it will not produce the effect of the presentation of assignment of the creditor's rights. Finally, in the case of continuous transfer, The attribution of rights should be judged by whether the debtor has been notified or not.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D923.6;D923

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