债权让与人权利瑕疵担保责任研究
发布时间：2018-11-15 12:02
【摘要】：当前，债权让与在日常交易和企业的经济往来中普遍存在，尤其是在金融机构的不良债权转让中产生的影响更为深刻。债权让与作为财富流转的一种重要形态，影响着交易主体之间的不同利益和交易安全，尤其是在现实生活中出现了许多债权让与权利瑕疵的实例，债权受让人的权利遭受损害而债权让与人的权利瑕疵担保责任在法律上处于空白地带，这引发了理论界和实务界的关注。 一方面，理论界主要是围绕买卖合同中的权利瑕疵担保责任而展开的，形成了较多的理论研究成果，但就债权让与人权利瑕疵担保责任而言，理论界的关注和研究都非常薄弱，甚至可以说处于空白状态，并且我国当前民事立法对此未作规定，构成明显的立法漏洞，给理论研究者提出了新的课题。另一方面，，现实社会中出现了较多因债权让与权利瑕疵致使受让人合法权益受损而救济无门的实例，严重影响了债权流转速度和交易安全，这使得对债权让与人权利瑕疵担保责任课题的研究显得十分必要，且具有现实意义。 首先，本文阐述了选题背景与意义，梳理了研究该主题已有的文献，形成文献综述，介绍当前理论研究状况，揭示本文主题的研究意义所在。其次，对债权让与人权利瑕疵担保责任的基本理论进行梳理，主要包括债权让与人权利瑕疵担保责任的概念、担保范围、要件。再次，主要参考了大陆法系德国、法国、日本，英美法系英美两国和《联合国应收账款转让公约》中的有关规定，通过运用归纳和对比的方法，对上述规定中涉及到债权让与人权利瑕疵担保责任的条款和内容进行了分析，为我国构建债权让与人权利瑕疵担保责任制度提供借鉴。最后，深入探讨我国《合同法》的有关规定，揭示我国现有立法中对债权让与人权利瑕疵担保责任的立法空白；分析我国实践中出现的债权让与人权利瑕疵担保责任的有关实例，结合前文的理论研究，针对债权让与人权利瑕疵担保责任的构建提出了一些具体的建议。
[Abstract]:At present, the transfer of creditor's rights is widespread in daily transactions and economic exchanges of enterprises, especially in the transfer of non-performing debts of financial institutions. As an important form of wealth circulation, creditor's rights transfer affects the different interests and transaction security among the trading subjects, especially in the real life, there are many examples of the defect of the right to transfer the creditor's rights. The rights of the transferee of creditor's rights are damaged and the guaranty liability of the creditor's right defect is in the blank zone in law, which has aroused the attention of the theorists and the practitioners. On the one hand, the theoretical circle mainly revolves around the right flaw guarantee responsibility in the contract of sale and purchase, which has formed more theoretical research results, but the theory circle is very weak in the aspect of the creditor's right transferor's right flaw guarantee liability. It can even be said that it is in a blank state, and the current civil legislation of our country does not make provision for this, which constitutes an obvious legislative loophole, and puts forward a new subject to the theoretical researchers. On the other hand, in the real society, there are many cases where the transferee's legitimate rights and interests are damaged due to the defect of the assignment of the creditor's rights, which seriously affects the speed of the creditor's rights circulation and the safety of the transaction. This makes it necessary and practical to study the subject of imperfections of creditor's rights. First of all, this paper expounds the background and significance of the topic, combs the existing literature on the subject, forms a literature review, introduces the current theoretical research situation, and reveals the significance of this theme. Secondly, the author sorts out the basic theory of guaranty liability of creditor's right transferor's right defect, mainly includes the concept, scope and elements of creditor's right transferor's right defect guarantee liability. Thirdly, mainly referring to the relevant provisions of the Continental Law system Germany, France, Japan, Anglo-American Law system and the United Nations Convention on the assignment of accounts Receivable, by using the method of induction and comparison, This paper analyzes the provisions and contents of the above provisions concerning the liability of guaranty for the defect of the right of the transferor of the creditor's rights, which provides a reference for the construction of the system of guaranty liability for the defect of the right of the transferor of the creditor's right in our country. Finally, the author deeply discusses the relevant provisions of contract Law of our country, and reveals the legislative blank in the existing legislation of our country concerning the liability of guaranty for the defect of the rights of the transferor of the creditor's rights. Based on the analysis of the relevant examples of the liability of guaranty for the defect of the right of the transferor of the creditor's rights in our country, this paper puts forward some concrete suggestions on the construction of the liability of the guaranty for the defect of the right of the transferor of the creditor's right in the light of the previous theoretical research.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D923.6
本文编号：2333250
[Abstract]:At present, the transfer of creditor's rights is widespread in daily transactions and economic exchanges of enterprises, especially in the transfer of non-performing debts of financial institutions. As an important form of wealth circulation, creditor's rights transfer affects the different interests and transaction security among the trading subjects, especially in the real life, there are many examples of the defect of the right to transfer the creditor's rights. The rights of the transferee of creditor's rights are damaged and the guaranty liability of the creditor's right defect is in the blank zone in law, which has aroused the attention of the theorists and the practitioners. On the one hand, the theoretical circle mainly revolves around the right flaw guarantee responsibility in the contract of sale and purchase, which has formed more theoretical research results, but the theory circle is very weak in the aspect of the creditor's right transferor's right flaw guarantee liability. It can even be said that it is in a blank state, and the current civil legislation of our country does not make provision for this, which constitutes an obvious legislative loophole, and puts forward a new subject to the theoretical researchers. On the other hand, in the real society, there are many cases where the transferee's legitimate rights and interests are damaged due to the defect of the assignment of the creditor's rights, which seriously affects the speed of the creditor's rights circulation and the safety of the transaction. This makes it necessary and practical to study the subject of imperfections of creditor's rights. First of all, this paper expounds the background and significance of the topic, combs the existing literature on the subject, forms a literature review, introduces the current theoretical research situation, and reveals the significance of this theme. Secondly, the author sorts out the basic theory of guaranty liability of creditor's right transferor's right defect, mainly includes the concept, scope and elements of creditor's right transferor's right defect guarantee liability. Thirdly, mainly referring to the relevant provisions of the Continental Law system Germany, France, Japan, Anglo-American Law system and the United Nations Convention on the assignment of accounts Receivable, by using the method of induction and comparison, This paper analyzes the provisions and contents of the above provisions concerning the liability of guaranty for the defect of the right of the transferor of the creditor's rights, which provides a reference for the construction of the system of guaranty liability for the defect of the right of the transferor of the creditor's right in our country. Finally, the author deeply discusses the relevant provisions of contract Law of our country, and reveals the legislative blank in the existing legislation of our country concerning the liability of guaranty for the defect of the rights of the transferor of the creditor's rights. Based on the analysis of the relevant examples of the liability of guaranty for the defect of the right of the transferor of the creditor's rights in our country, this paper puts forward some concrete suggestions on the construction of the liability of the guaranty for the defect of the right of the transferor of the creditor's right in the light of the previous theoretical research.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D923.6
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1 王红良;论债权让与的效力[D];华东政法大学;2010年
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