论通知对债权让与效力的影响

发布时间：2018-05-06 02:19

本文选题：债权让与 + 通知　；参考：《华东政法大学》2009年硕士论文

【摘要】： 债权让与是现代民商法的一项基本制度,其标的既可能是指名债权,也可能是指示债权或无记名债权。本文以指名债权——普通民法债权——的全部让与作为研究对象,以逻辑分析为主轴,以社会学分析、文义分析等法律解释方法为辅助,系统地论证了通知作为普通民法债权生效要件的必然、对抗要件的可行,以及通知在让与人、受让人、债务人、第三人等诸关系中作为保护债务人利益、平衡第三人利益的作用,并最终建构起“形式移转债权”理论。全文由引言、正文和结语三个部分组成。引言交待了选题的意义、研究的范围以及研究的方法,结语对全文进行了总结,并对权利变动模式的统一提出了构想。正文共分三章。第一章主要论述债权让与的生效问题。在对三种典型的“物权变动模式”和“债权变动模式”进行考察和比较的过程中,笔者发现各国在债权让与问题上由于对债权让与合同和债权让与不加区分、对通知的公信力和促进债权流通的信心不足等原因都抛弃了债权移转的形式要求,转而采用“合意移转债权”模式。但“合意移转债权”模式却因不符债的本质、有违法律逻辑和社会情理而先天不足。事实上,判断权利是否移转的标准应是何种法律事实发生后受让人能够支配权利,或者说受让人从此享有权利。在债权让与制度中,这种法律事实无疑是通知,而通知在性质上则是准法律行为,应准用意思表示的规定。第二章主要论述通知对债务人利益保护问题。通过对自由主义和通知主义两种立法例进行考察和分析,笔者评判了以“知悉”作为债权移转实际生效要件立法例的弊端,论证了以通知作为债权移转生效要件对债务人利益保护的必然性。在此基础上,笔者认为,为保护债务人的利益,应严格适用公告通知、有条件的适用诉讼告知；无论让与人还是受让人为错误通知,都应发生表见让与的效力,而不论债务人善意、恶意与否。第三章主要论述通知对第三人利益平衡问题。因债权让与合同生效并不等于债权让与生效,故在债权让与生效之前,债权有被再次出让的可能性,由此产生了债权多重让与中的优先权问题。笔者在考察分析了债权多重让与中的时间优先规则、通知优先规则和登记优先规则之后,认为在对第三人利益的平衡问题上,登记优先规则最具优势,通知优先规则次之,时间优先规则最次。但在普通民法债权让与上,登记优先规则在现阶段却存在交易成本高昂、社会认同度低等弊端,故不宜采用。而通知优先规则虽然在对抗第三人问题上的效果不如登记优先规则,但却优于时间优先规则,故应为我国现阶段立法所采。
[Abstract]:Assignment of creditor's rights is a basic system of modern civil and commercial law. In this paper, the author takes the total transfer of the named creditor's rights as the object of study, the logical analysis as the main axis, the sociological analysis, the semantic analysis and other legal interpretation methods as the auxiliary. This paper systematically demonstrates the necessity and feasibility of the notice as the effective element of creditor's rights in ordinary civil law, and the notice as the protection of the debtor's interests in the relations among the transferor, assignee, debtor, third party, etc. Balancing the interests of the third party and finally constructing the theory of formal transfer of creditor's rights. The full text consists of three parts: introduction, text and conclusion. The introduction explains the significance of the topic, the scope of the study and the method of the study, the conclusion summarizes the full text, and puts forward the idea of the unity of the mode of right change. The text is divided into three chapters. The first chapter mainly discusses the validity of the assignment of creditor's rights. In the course of investigating and comparing the three typical models of "real right change" and "creditor's right change mode", the author finds that there is no distinction between creditor's rights assignment contract and creditor's right assignment in various countries. Both the credibility of the notice and the lack of confidence in promoting the circulation of the creditor's rights abandon the formal requirement of the transfer of the creditor's rights and adopt the mode of "consensual transfer of the creditor's rights". However, the mode of "transfer of creditor's rights by agreement" is deficient because it does not conform to the nature of debt, and is contrary to legal logic and social reason. In fact, the criterion of whether or not the right is transferred should be what kind of legal fact the transferee can dispose of the right after the occurrence, or the transferee has the right from then on. In the system of assignment of creditor's rights, this kind of legal fact is undoubtedly a notice, and the nature of a notice is a quasi-legal act, which should be expressed by intention. The second chapter mainly discusses the protection of the debtor's interests by notice. Through the investigation and analysis of the two kinds of legislation examples of liberalism and notificationism, the author judges the malpractice of taking "knowledge" as the legislative example of transferring the actual effective elements of creditor's rights. This paper demonstrates the necessity of taking notice as the effective element of transfer of creditor's rights to protect the interests of debtor. On this basis, the author believes that in order to protect the interests of the debtor, the notice of announcement should be strictly applied, and the notice of conditional application of litigation should be applied; whether the transferor or the transferee is the wrong notification, the effect of apparent transfer should occur. Regardless of the debtor's goodwill, malicious or not. The third chapter mainly discusses the interest balance between notice and third party. Because the contract of assignment of creditor's rights is not equal to the validity of assignment of creditor's rights, it is possible for the creditor's rights to be reassigned before the transfer of creditor's rights, which leads to the problem of priority in the multiple assignment of creditor's rights. After investigating and analyzing the time priority rule, notice priority rule and registration priority rule in the multiple assignment of creditor's rights, the author thinks that the registration priority rule has the most advantage in balancing the interests of the third party, and the notice priority rule takes the second place. Time first rule is the worst. However, in the transfer of creditor's rights in common civil law, the rule of priority of registration has some disadvantages such as high transaction cost and low degree of social identity at the present stage, so it is not suitable to adopt it. Although the priority rule of notification is not as effective as the rule of registration priority against the third party, it is superior to the rule of time priority, so it should be adopted in the legislation of our country at the present stage.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D923

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