债权人撤销权制度的实证分析
发布时间：2018-09-18 09:05
【摘要】：债权人撤销权制度的功能和价值是什么?学者普遍认为,作为债的担保制度,该制度可以恢复被债务人处分的财产,实现债权人债权,达到债权人债权保护和促进市场交易两者的平衡。我国的合同法及相关内容对此制度也进行了有关规定。但考察规则的具体内容可发现,内容主要涉及了撤销权制度成立的主客观要件、适用的条件以及债务人处分行为被撤销后的法律后果,但内容规定的非常抽象、笼统,容易造成实践层面操作的混乱,特别是对撤销权的效力范围、如何行使、行使的法律后果等并未明确予以规定,导致实践中出现不少困境。比如我国的相关法律规定均规定撤销后的法律后果是:债务人转让财产的行为自始无效,但其含义并没明确,是指法律后果吗?该法律后果与无效合同的法律后果有什么实质区别及如何才能得以实现?债权人如何可以让受让人自动返还财产呢,仅凭撤销权之诉便可以实现此法律后果吗?如果受让人拒绝返还,认为已经合法取得,这种情况又该如何平衡等等。上述问题已经严重影响了该制度在实践中作用的发挥,究其原因,理论上有关债权人撤销权性质、成立要件的判定(如主观恶意的确定),财产受让人有出现再次处分财产的情况,如何协调各方利益,各学者的观点存在较大分歧,导致该制度在司法实践遭到严重挑战,也阻碍了该制度立法目的的实现。本文除了引言和结论外,由四个部分构成:第一部分在系统分析债权人撤销权性质有关学说和理论,对其进行总结的基础上提出本文的观点并结合司法案例对其成立要件进行分析;第二部分用比较法视野探究债权人撤销权制度的特点及在我国撤销权制度中的地位;第三部分着眼于债务人赠与行为规定中存在的问题及解决,第四部分是债务人低价处分房屋,债权人行使撤销权的实证分析,第三、四部分系文章的核心。第一部分是债权人撤销权性质的界定和其成立要件。对其性质问题,理论界众说纷纭。本文倾向于折衷说,此说有利于恢复债务人责任财产,更好的为债权人债权的实现提供充足的担保,因而更符合债权保全制度的立法意图,以使得读者了解撤销权理论基础及该制度运行的原理和基本价值。第二部分是通过对我国法律有关撤销权的内容进行梳理和整合,对与之相关的其他层面的撤销权进行区分,如普通民事行为领域的撤销权、赠与合同的撤销权、可撤销合同的撤销权等,这些具体规定的撤销权具有哪些不一样的功能,与本文研究的债权人撤销权制度有哪些区别?通过比较,我们能更深刻的理解债权人撤销权的制度价值和功能。第三部分是赠与行为中的撤销权的实证分析。首先介绍相关典型司法案例及裁判的主要内容,再针对债务人赠与财产,受益人又将该标的物转赠他人引起的法律效果进行分析,主要涉及债权人与受益人的法律关系,这种情况下,债权人是否可直接请求受益人返回赠与物呢?但如果出现在受益人将赠与财产以有偿对价的方式转让给第三人(亦称转得人),那么,债权人可否要求转得人返还?本文提出只有当受赠人与转得人之间存在主观恶意,债权人才可以要求第三人返还以维护自己的债权。同时,该部分也探讨夫妻协议离婚中子女受赠利益的保护等问题。财产在客观上是否可恢复和社会基本公平原则应当成为行使撤销权过程中应尤为注意的两个因素。第四部分是债务人低价处分房屋,债权人行使撤销权的实证分析。实践中,多数案例碰到的情形是,债务人低价处分的财产是不动产,如果受让人已办理不动产产权过户取得不动产物权,同时以房屋为抵押向银行金融机构设定他项物权,那么,如何协调债权人利益与房屋抵押权人利益。本文认为,债权人不可以要求撤销产权登记,但法院在房屋处置过程中尽可能达到两者利益平衡即可以在处置房屋后,先偿还抵押权人的债务,所剩余款再在各普通债权人之间按债权比例进行分配。同时认为,行使撤销权的债权人可以优先其他普通债权人对转让财产受偿的观点缺乏法理支持。该部分进一步论述到受让人取得房屋产权登记后,对房屋进行出租所碰到的法律问题如何解决。如承租人与受让人间租赁合同的效力、租金利益的归属;又如该房屋还存在其他隐性共有权人,则其共有份额与债权人的利益如何协调平衡?是该优先考虑隐性共有权人的利益?
[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?
【学位授予单位】：宁波大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D913
本文编号：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?
【学位授予单位】：宁波大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D913
【参考文献】
相关期刊论文 前2条
1 姚辉;论债权人撤销权[J];法律科学(西北政法学院学报);1990年03期
2 提爱莲;撤销权——法律效力探讨[J];法律适用;2003年05期
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