Since the enactment of the Civil Code,the creditor's right of revocation in China has undergone significant development and has become increasingly refined.However,in practical application,issues persist regarding...Since the enactment of the Civil Code,the creditor's right of revocation in China has undergone significant development and has become increasingly refined.However,in practical application,issues persist regarding the lack of consensus on the relationship between the creditor's right of revocation and the application of malicious collusion rules,the ambiguity in standards for determining the fraudulent nature of the debtor's actions,and the incomplete realization of the legal effects of the creditor's right of revocation.These issues can be addressed through a three-tiered structure of'norm selection,constituent elements,and legal effect realization'In norm selection,the focus should shift from substantive law to procedural law.Malicious collusion should be positioned as a defense that courts may invoke ex officio.It should be clearly established that the procedural application of the creditor's right of revocation follows malicious collusion in order of precedence.In terms of constituent elements,a dual standard should be adopted to assess the fraudulent nature of the debtor's actions.This standard should specifically address the determination of fraudulence at the time the debtor's actions are undertaken and at the time the creditor exercises their rights.In terms of legal effect realization,on the one hand,creditors should be granted the right to request the return of property from the counterparty and to apply for enforcement against the counterparty;on the other hand,in specific circumstances,the counterparty should be imposed with a notice obligation,requiring them to notify the creditor when returning property to the debtor.展开更多
基金supported by Zhejiang Province Philosophy and Social Science Planning Project(Grant Number:21NDQN259YB).
文摘Since the enactment of the Civil Code,the creditor's right of revocation in China has undergone significant development and has become increasingly refined.However,in practical application,issues persist regarding the lack of consensus on the relationship between the creditor's right of revocation and the application of malicious collusion rules,the ambiguity in standards for determining the fraudulent nature of the debtor's actions,and the incomplete realization of the legal effects of the creditor's right of revocation.These issues can be addressed through a three-tiered structure of'norm selection,constituent elements,and legal effect realization'In norm selection,the focus should shift from substantive law to procedural law.Malicious collusion should be positioned as a defense that courts may invoke ex officio.It should be clearly established that the procedural application of the creditor's right of revocation follows malicious collusion in order of precedence.In terms of constituent elements,a dual standard should be adopted to assess the fraudulent nature of the debtor's actions.This standard should specifically address the determination of fraudulence at the time the debtor's actions are undertaken and at the time the creditor exercises their rights.In terms of legal effect realization,on the one hand,creditors should be granted the right to request the return of property from the counterparty and to apply for enforcement against the counterparty;on the other hand,in specific circumstances,the counterparty should be imposed with a notice obligation,requiring them to notify the creditor when returning property to the debtor.
