Will " law of right of matter of People's Republic of China " the creditor's rights of receivable Zhang money that the 228th the 2nd paragraph explanation establishs impawn to make over is invalid, below the setting of the negotiability that emphasizes creditor's rights and value, go against benefit of creditor's rights of receivable Zhang money the biggest the play that turn; Maintain already gave creditor's rights of plain receivable Zhang money to make over a contract effective, (debtor did not obtain pawnee to agree to must not fulfill debt to vendee) can not be opposite the interest of pawnee causes adverse effect, accord with legislative purpose, original trial thinks this regulation is not effectiveness sex definitely mandatory regulation, applicable law is correct, should grant to maintain.
Summary of details of a case:1, on June 20, 2013, promote course of study to assure company and company of Hong Guang coal sign " impawn of receivable Zhang money assures instead contract " : With Hong Guang coal company is receivable big the Tang Dynasty more than yuan of 1560 payment for goods makes the heat and power plant impawn is offerred assure instead, believed a center to undertake impawn register at was in Chinese people bank to ask for on July 3, 2013.
2, on July 13, 2013, company of Hong Guang coal and factory of 3 abundant boiler reach " creditor's rights makes over agreement " : Company of Hong Guang coal will be right big the Tang Dynasty the creditor's rights of the heat and power plant makes over factory of 3 abundant boiler entirely.
3, serve as security promote course of study to assure the company assures according to loan after refund of company of coal of contract Dai Hongguang, accuse to Hong Guang to the court coal company chases after countervail this loan principal and interest, deny creditor's rights to make over consultative effectiveness.
Controversy focus:Is the creditor's rights of receivable Zhang money that has created qualitative advantageous position made over effective?
The court thinks:This academy thinks afore-mentioned regulations do not affect creditor's rights to make over the effectiveness of the contract. Prime cause is:
The first, the " in standard of active civil code does not get " 2 words are not to identify effectiveness sex mandatory formulary standard, it has a variety of explanation possibility, have a plenty of point to the result that does not produce content adaptability in tactics to move, have a plenty of point to make over the contract, contract that creates content advantageous position not to produce effectiveness to perhaps disable. For example, " urban estate administers a law " the estate that thirtieth must not transfer of 8 regulations, current judicatory practice all thinks, violate this regulation, make over a contract and do not disable, but whether to produce substance adaptability in tactics is moved or alienee whether request transferor continues to fulfill, need to set according to this each are judged respectively.
The 2nd, will " law of right of matter of People's Republic of China " the creditor's rights of receivable Zhang money that the 228th the 2nd paragraph explanation establishs impawn to make over is invalid, below the setting of the negotiability that emphasizes creditor's rights and value, go against benefit of creditor's rights of receivable Zhang money the biggest the play that turn. Because,this is, impawn of set of creditor's rights of receivable Zhang money and creditor's rights of receivable Zhang money are made over have different function and feature, former aim to give priority to creditor's rights to assure, qualitative authority whether exercise, depend on whether does debtor fulfill debt, have uncertainty. During qualitative authority establishs this paragraph to exercise to counterpoise character inside, be assured advocate debtor and average per capita of creditor's rights of receivable Zhang money are terminable interest, interest of this kind of time is opposite sometimes party increase is huge, involve market wave motion, commerce to trade wait for all sorts of elements. In the meantime, what realize possibility according to creditor's rights of receivable Zhang money is different, creditor's rights of receivable Zhang money has different value, below the premise that recognizes this value in alienee of receivable Zhang money, restrict this creditor's rights to make over, block up loan of receivable Zhang money goes to its creditor's rights keeps abreast of and harm its interest now. Additional, the qualitative authority place that approbates value of this creditor's rights to be more than the set on its in alienee of creditor's rights of receivable Zhang money assures advocate creditor's rights is willing to get the circumstance that lets this creditor's rights, restrict this creditor's rights current, do not have rationality more.
The 3rd, already will give creditor's rights of plain receivable Zhang money to make over a contract to maintain to disable, go against the interest of pawnee sometimes. Basis " law of right of matter of People's Republic of China " the 228th the 2nd regulation, give qualitative person to transfer the cost of income of receivable Zhang money, ought to shift to an earlier date to pawnee pay off or drawing. If maintain a contract to disable, mean what impawn person has obtained to transfer cost return still. To pawnee, the creditor's rights that has come true (transfer cost) with the creditor's rights that has not come true (creditor's rights of receivable Zhang money) photograph comparing, apparent and former more advantageous to pawnee.
The 4th, look from the system that register, below the form of movable mould of content adaptability in tactics that registering become effective creed, ought to implement the public letter power that register as far as possible, such, do not make over creditor's rights of receivable Zhang money the contract to be attributed to invalid, what the regulation that at the same time adaptability in tactics of according to content changes counterpoises character certainly is attributive with effectiveness, more clear on logic.
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Relevant law:" matter right law "
The 228th goes out with receivable Zhang money qualitative, party ought to conclude written contract. Qualitative authority believes an orgnaization to deal with from credit ask forring when going out to be registered character, establish.
Receivable Zhang money goes after pledging, must not make over, but the except that agrees via giving qualitative person and pawnee to talk things over. Give qualitative person to transfer the cost of income of receivable Zhang money, ought to shift to an earlier date to pawnee pay off debt or drawing.
Solid Wu analyses:Matter right statute is in guaranty surely or the content of the mark of impawn condition agrees to must not be made over without pawnee, the 191st sets with the 228th textual those who use is " must not make over " . But the " that highest courtyard thinks standard of active civil code is medium does not get " 2 words are not to decide this clause is effectiveness sex mandatory direct standard of the regulation, "Do not get " to have a variety of explanation possibility, have a plenty of point to the result that does not produce content adaptability in tactics to move, have a plenty of point to make over the contract, contract that creates content advantageous position not to produce effectiveness to perhaps disable.
Make over the effectiveness problem that agrees without passing hypothec person to pawn, highest courtyard ever had directive case to think directly: Vendee transfers the hypothec responsibility on the content of mark through do away with of authority of exercise do away with, make over behavior effective. Same this viewpoint can consult applicable in case of impawn of receivable Zhang money, how ought to ensure as to vendee creditor's rights of the basis after pawnee rights and interests is bought get contract exercise right, the author can give in follow-up article analysis.
