債權(quán)人撤銷權(quán)制度的實證分析
發(fā)布時間：2018-09-18 09:05
【摘要】：債權(quán)人撤銷權(quán)制度的功能和價值是什么?學者普遍認為,作為債的擔保制度,該制度可以恢復被債務(wù)人處分的財產(chǎn),實現(xiàn)債權(quán)人債權(quán),達到債權(quán)人債權(quán)保護和促進市場交易兩者的平衡。我國的合同法及相關(guān)內(nèi)容對此制度也進行了有關(guān)規(guī)定。但考察規(guī)則的具體內(nèi)容可發(fā)現(xiàn),內(nèi)容主要涉及了撤銷權(quán)制度成立的主客觀要件、適用的條件以及債務(wù)人處分行為被撤銷后的法律后果,但內(nèi)容規(guī)定的非常抽象、籠統(tǒng),容易造成實踐層面操作的混亂,特別是對撤銷權(quán)的效力范圍、如何行使、行使的法律后果等并未明確予以規(guī)定,導致實踐中出現(xiàn)不少困境。比如我國的相關(guān)法律規(guī)定均規(guī)定撤銷后的法律后果是:債務(wù)人轉(zhuǎn)讓財產(chǎn)的行為自始無效,但其含義并沒明確,是指法律后果嗎?該法律后果與無效合同的法律后果有什么實質(zhì)區(qū)別及如何才能得以實現(xiàn)?債權(quán)人如何可以讓受讓人自動返還財產(chǎn)呢,僅憑撤銷權(quán)之訴便可以實現(xiàn)此法律后果嗎?如果受讓人拒絕返還,認為已經(jīng)合法取得,這種情況又該如何平衡等等。上述問題已經(jīng)嚴重影響了該制度在實踐中作用的發(fā)揮,究其原因,理論上有關(guān)債權(quán)人撤銷權(quán)性質(zhì)、成立要件的判定(如主觀惡意的確定),財產(chǎn)受讓人有出現(xiàn)再次處分財產(chǎn)的情況,如何協(xié)調(diào)各方利益,各學者的觀點存在較大分歧,導致該制度在司法實踐遭到嚴重挑戰(zhàn),也阻礙了該制度立法目的的實現(xiàn)。本文除了引言和結(jié)論外,由四個部分構(gòu)成:第一部分在系統(tǒng)分析債權(quán)人撤銷權(quán)性質(zhì)有關(guān)學說和理論,對其進行總結(jié)的基礎(chǔ)上提出本文的觀點并結(jié)合司法案例對其成立要件進行分析;第二部分用比較法視野探究債權(quán)人撤銷權(quán)制度的特點及在我國撤銷權(quán)制度中的地位;第三部分著眼于債務(wù)人贈與行為規(guī)定中存在的問題及解決,第四部分是債務(wù)人低價處分房屋,債權(quán)人行使撤銷權(quán)的實證分析,第三、四部分系文章的核心。第一部分是債權(quán)人撤銷權(quán)性質(zhì)的界定和其成立要件。對其性質(zhì)問題,理論界眾說紛紜。本文傾向于折衷說,此說有利于恢復債務(wù)人責任財產(chǎn),更好的為債權(quán)人債權(quán)的實現(xiàn)提供充足的擔保,因而更符合債權(quán)保全制度的立法意圖,以使得讀者了解撤銷權(quán)理論基礎(chǔ)及該制度運行的原理和基本價值。第二部分是通過對我國法律有關(guān)撤銷權(quán)的內(nèi)容進行梳理和整合,對與之相關(guān)的其他層面的撤銷權(quán)進行區(qū)分,如普通民事行為領(lǐng)域的撤銷權(quán)、贈與合同的撤銷權(quán)、可撤銷合同的撤銷權(quán)等,這些具體規(guī)定的撤銷權(quán)具有哪些不一樣的功能,與本文研究的債權(quán)人撤銷權(quán)制度有哪些區(qū)別?通過比較,我們能更深刻的理解債權(quán)人撤銷權(quán)的制度價值和功能。第三部分是贈與行為中的撤銷權(quán)的實證分析。首先介紹相關(guān)典型司法案例及裁判的主要內(nèi)容,再針對債務(wù)人贈與財產(chǎn),受益人又將該標的物轉(zhuǎn)贈他人引起的法律效果進行分析,主要涉及債權(quán)人與受益人的法律關(guān)系,這種情況下,債權(quán)人是否可直接請求受益人返回贈與物呢?但如果出現(xiàn)在受益人將贈與財產(chǎn)以有償對價的方式轉(zhuǎn)讓給第三人(亦稱轉(zhuǎn)得人),那么,債權(quán)人可否要求轉(zhuǎn)得人返還?本文提出只有當受贈人與轉(zhuǎn)得人之間存在主觀惡意,債權(quán)人才可以要求第三人返還以維護自己的債權(quán)。同時,該部分也探討夫妻協(xié)議離婚中子女受贈利益的保護等問題。財產(chǎn)在客觀上是否可恢復和社會基本公平原則應(yīng)當成為行使撤銷權(quán)過程中應(yīng)尤為注意的兩個因素。第四部分是債務(wù)人低價處分房屋,債權(quán)人行使撤銷權(quán)的實證分析。實踐中,多數(shù)案例碰到的情形是,債務(wù)人低價處分的財產(chǎn)是不動產(chǎn),如果受讓人已辦理不動產(chǎn)產(chǎn)權(quán)過戶取得不動產(chǎn)物權(quán),同時以房屋為抵押向銀行金融機構(gòu)設(shè)定他項物權(quán),那么,如何協(xié)調(diào)債權(quán)人利益與房屋抵押權(quán)人利益。本文認為,債權(quán)人不可以要求撤銷產(chǎn)權(quán)登記,但法院在房屋處置過程中盡可能達到兩者利益平衡即可以在處置房屋后,先償還抵押權(quán)人的債務(wù),所剩余款再在各普通債權(quán)人之間按債權(quán)比例進行分配。同時認為,行使撤銷權(quán)的債權(quán)人可以優(yōu)先其他普通債權(quán)人對轉(zhuǎn)讓財產(chǎn)受償?shù)挠^點缺乏法理支持。該部分進一步論述到受讓人取得房屋產(chǎn)權(quán)登記后,對房屋進行出租所碰到的法律問題如何解決。如承租人與受讓人間租賃合同的效力、租金利益的歸屬;又如該房屋還存在其他隱性共有權(quán)人,則其共有份額與債權(quán)人的利益如何協(xié)調(diào)平衡?是該優(yōu)先考慮隱性共有權(quán)人的利益?
[Abstract]:What is the function and value of the creditor's revocation right system? Scholars generally believe that as a guarantee system of debt, the system can restore the property disposed of by the debtor, realize the creditor's rights, achieve the balance between the protection of creditor's rights and the promotion of market transactions. However, the specific content of the rules can be found that the content mainly involves the subjective and objective elements of the establishment of the revocation right system, the applicable conditions and the legal consequences of the debtor's disposition being revoked, but the content is very abstract, general, easy to cause confusion in the operation of the practical level, especially the scope of the effect of the revocation right, and how to implement it. For example, the relevant legal provisions of our country all stipulate that the legal consequences after cancellation are: the debtor's transfer of property is invalid from the beginning, but its meaning is not clear, referring to the legal consequences? What are the legal consequences of this legal consequences and invalid contracts? How can creditors allow the assignee to return the property automatically? Can the legal consequences be achieved only by the suit of revocation? If the assignee refuses to return and thinks that it has been legally obtained, how to balance this situation and so on. The above problems have seriously affected the practice of the system. In theory, the nature of the creditor's revocation right, the determination of the necessary conditions for its establishment (such as the determination of subjective malice), the disposition of property by the transferee once again, and the coordination of the interests of all parties are quite different from each other. As a result, the system has been seriously challenged in judicial practice and has hindered the system. In addition to the introduction and conclusion, this paper consists of four parts: the first part of the system analysis of the nature of the creditor's revocation of the doctrine and theory, on the basis of its summary put forward the views of this article and combined with judicial cases to analyze the elements of its establishment; the second part of the comparative law perspective to explore the creditors. The third part focuses on the problems and solutions in the provisions of the debtor's donation behavior. The fourth part is the empirical analysis of the debtor's low-price disposal of housing, the creditor's exercise of the right of cancellation. The third and fourth parts are the core of the article. The first part is the nature of the creditor's right of cancellation. There are different opinions on its nature. This paper tends to compromise that this theory is conducive to restoring the debtor's liable property and providing sufficient guarantee for the realization of creditor's rights. Therefore, it is more in line with the legislative intent of the creditor's rights preservation system, so that readers can understand the theoretical basis of the right of cancellation and the system. The second part is to sort out and integrate the contents of the right of revocation in our country's law, and to distinguish the right of revocation in other aspects, such as the right of revocation in the field of ordinary civil acts, the right of revocation in gift contracts, the right of revocation in revocable contracts and so on. What are the different functions and what are the differences between the system of creditor's revocation right and the system of creditor's revocation right studied in this paper? By comparison, we can understand the value and function of the system of creditor's revocation right more deeply. The third part is the empirical analysis of the revocation right in the act of donation. The debtor donates the property and the beneficiary transfers the subject matter to another person, which mainly involves the legal relationship between the creditor and the beneficiary. In this case, can the creditor directly request the beneficiary to return the donated property? But if it appears that the beneficiary transfers the donated property to the third party by way of paid consideration. Can the creditor demand the return of the transferee? This paper proposes that only when there is subjective malice between the donee and the transferee can the creditor demand the return of the third party to safeguard his creditor's rights. The fourth part is the empirical analysis of the debtor's low-price disposal of the house and the creditor's exercise of the right of cancellation. How to coordinate the interests of the creditor and the mortgagee of the house? This paper holds that the creditor can not ask to cancel the registration of the property right, but the court can balance the interests of the two as far as possible in the process of housing disposal. At the same time, the creditor who exercises the right of cancellation can give priority to other ordinary creditors. This part further discusses that the transferee obtains the property of the house. After the registration of the right, how to solve the legal problems encountered in renting the house? For example, the effectiveness of the lease contract between the lessee and the assignee, the ownership of the rental interests; and if there are other hidden co-owners in the house, how to balance the common share with the interests of the creditors? It is the priority to consider the interests of the hidden co-owners?
【學位授予單位】：寧波大學
【學位級別】：碩士
【學位授予年份】：2015
【分類號】：D913
本文編號：2247433
[Abstract]:What is the function and value of the creditor's revocation right system? Scholars generally believe that as a guarantee system of debt, the system can restore the property disposed of by the debtor, realize the creditor's rights, achieve the balance between the protection of creditor's rights and the promotion of market transactions. However, the specific content of the rules can be found that the content mainly involves the subjective and objective elements of the establishment of the revocation right system, the applicable conditions and the legal consequences of the debtor's disposition being revoked, but the content is very abstract, general, easy to cause confusion in the operation of the practical level, especially the scope of the effect of the revocation right, and how to implement it. For example, the relevant legal provisions of our country all stipulate that the legal consequences after cancellation are: the debtor's transfer of property is invalid from the beginning, but its meaning is not clear, referring to the legal consequences? What are the legal consequences of this legal consequences and invalid contracts? How can creditors allow the assignee to return the property automatically? Can the legal consequences be achieved only by the suit of revocation? If the assignee refuses to return and thinks that it has been legally obtained, how to balance this situation and so on. The above problems have seriously affected the practice of the system. In theory, the nature of the creditor's revocation right, the determination of the necessary conditions for its establishment (such as the determination of subjective malice), the disposition of property by the transferee once again, and the coordination of the interests of all parties are quite different from each other. As a result, the system has been seriously challenged in judicial practice and has hindered the system. In addition to the introduction and conclusion, this paper consists of four parts: the first part of the system analysis of the nature of the creditor's revocation of the doctrine and theory, on the basis of its summary put forward the views of this article and combined with judicial cases to analyze the elements of its establishment; the second part of the comparative law perspective to explore the creditors. The third part focuses on the problems and solutions in the provisions of the debtor's donation behavior. The fourth part is the empirical analysis of the debtor's low-price disposal of housing, the creditor's exercise of the right of cancellation. The third and fourth parts are the core of the article. The first part is the nature of the creditor's right of cancellation. There are different opinions on its nature. This paper tends to compromise that this theory is conducive to restoring the debtor's liable property and providing sufficient guarantee for the realization of creditor's rights. Therefore, it is more in line with the legislative intent of the creditor's rights preservation system, so that readers can understand the theoretical basis of the right of cancellation and the system. The second part is to sort out and integrate the contents of the right of revocation in our country's law, and to distinguish the right of revocation in other aspects, such as the right of revocation in the field of ordinary civil acts, the right of revocation in gift contracts, the right of revocation in revocable contracts and so on. What are the different functions and what are the differences between the system of creditor's revocation right and the system of creditor's revocation right studied in this paper? By comparison, we can understand the value and function of the system of creditor's revocation right more deeply. The third part is the empirical analysis of the revocation right in the act of donation. The debtor donates the property and the beneficiary transfers the subject matter to another person, which mainly involves the legal relationship between the creditor and the beneficiary. In this case, can the creditor directly request the beneficiary to return the donated property? But if it appears that the beneficiary transfers the donated property to the third party by way of paid consideration. Can the creditor demand the return of the transferee? This paper proposes that only when there is subjective malice between the donee and the transferee can the creditor demand the return of the third party to safeguard his creditor's rights. The fourth part is the empirical analysis of the debtor's low-price disposal of the house and the creditor's exercise of the right of cancellation. How to coordinate the interests of the creditor and the mortgagee of the house? This paper holds that the creditor can not ask to cancel the registration of the property right, but the court can balance the interests of the two as far as possible in the process of housing disposal. At the same time, the creditor who exercises the right of cancellation can give priority to other ordinary creditors. This part further discusses that the transferee obtains the property of the house. After the registration of the right, how to solve the legal problems encountered in renting the house? For example, the effectiveness of the lease contract between the lessee and the assignee, the ownership of the rental interests; and if there are other hidden co-owners in the house, how to balance the common share with the interests of the creditors? It is the priority to consider the interests of the hidden co-owners?
【學位授予單位】：寧波大學
【學位級別】：碩士
【學位授予年份】：2015
【分類號】：D913
【參考文獻】
相關(guān)期刊論文 前2條
1 姚輝;論債權(quán)人撤銷權(quán)[J];法律科學(西北政法學院學報);1990年03期
2 提愛蓮;撤銷權(quán)——法律效力探討[J];法律適用;2003年05期
，本文編號：2247433
本文鏈接：http://sikaile.net/falvlunwen/minfalunwen/2247433.html
最近更新
教材專著
