Cancel counterpoises accuse brief of a case differs to also have different classification according to specific content, how accurate the condition that holds cancel authority exercise, cancel of correct exercise contract counterpoises, protect the legitimate rights and interests of party.
One, summarize cancel authority
Alleged cancel counterpoises, it is to show creditor carries out punish in debtor and other when the behavior of its belongings and right endangers the implementation of own creditor's rights, can apply for a court to give the right of cancel. Authority appeals to to abandon advantageous position in what theoretic some weighs civil code again.
Cancel authority is our country " contract law " a kind of right of new regulation. " contract law " the 74th regulation " because debtor abandons his expiring creditor's rights or free transfers property, cause to creditor damage, creditor can request the action of debtor of people court cancel. Debtor transfers property with apparently unreasonable low, cause to creditor damage, and alienee knows this state, creditor also can request the action of debtor of people court cancel.
2, the particular brief of a case of cancel authority issue
Case of cancel authority issue according to its specific content differs can area hair is 3 kinds, namely cancel debtor abandons expiring free of debtor of cancel of; of dispute of creditor's rights behavior makes over low of debtor of cancel of belongings dispute; to make over belongings dispute.
1, cancel debtor abandons expiring creditor's rights dispute. It is the cancel demand that creditor indicates clearly to debtor to express to abandon action to the creditor's rights that has expired. The creditor's rights that debtor abandons can be content power creditor's rights also can be amount creditor's rights. For instance debtor has bought some kind of article or goods, and consign money paid for something purchased or received for something sold, article or goods should be collected in due date, but its are opposite for avoid of creditor fulfill and abandon, also belong to abandon creditor's rights.
2, cancel debtor free makes over belongings dispute. It is creditor to debtor free ground the money oneself is other perhaps belongings is donative other, do not have any is opposite valence. If the amount oneself, building, car, machine, equipment sends some debtor his relative, friend or someone else, perhaps pay the cost that buys the goods such as building, car, electric equipment for other through account, dummy perhaps some kind of reason delimits the paragraph unplug the account of other, the property right card that perhaps waits for the building that oneself had paid, car does the name of someone else.
3, cancel debtor low makes over belongings dispute. It is creditor ask oneself lawful belongings with making over the behavior of other under market price case apparently to debtor cancel. Authority of before two kinds of cancel should have action only, creditor can ask cancel. And the behavior that makes over to low, whether is still should seeing this kind of low apparent low. Because fair competition allows in market economy, proper price float is normal. If inside certain extent trade to handle exercise cancel right as low, what can create the market is confused.
If produced the issue that cancel counterpoises, this attention is the following at 3 o'clock:
One, what person is OK exercise cancel counterpoises, satisfy the requirement that cancel counterpoises
The exercise that cancel counterpoises should be had subjective and objective the condition of two respects. Look from impersonal aspect, should have the following requirement:
1, debtor has make oneself belongings decreases or the action that the burden increases. Include to abandon expiring creditor's rights, free transfers property, make over belongings to wait with apparently unreasonable low.
2, after the behavior of debtor happens in creditor's rights to hold water, had produced legal effectiveness. If afore-mentioned action produce before creditor's rights holds water, creditor's rights is still right now nonexistent, cannot think this behavior is caused to creditor's rights damage. And the creditor after debtor is afore-mentioned punish behavior still concerns with debtor happening law, show creditor is willing to assume the risk that creditor's rights cannot realize, must not request cancel debtor to produce prevenient action oneself, so the behavior of debtor must happen after creditor's rights holds water effectively.
In the meantime, the behavior of debtor must have produced legal effectiveness, if the behavior of debtor did not produce legal effectiveness, perhaps can produce legal effectiveness far from (belong to) of invalid and civil action for example, the property ownership of debtor did not produce move, criterion creditor need not pass exercise cancel authority to conserve oneself creditor's rights, and the action that can request forensic declaration debtor is invalid and civil action. So, creditor can cancel debtor is as effective as triangular behavior.
3, the behavior of debtor endangers creditor's rights. The behavior of debtor endangers creditor's rights, it is to show the behavior of debtor can bring about the responsibility belongings that its assure as creditor's rights to decrease, make the creditor's rights of creditor has the risk that cannot realize.
From the point of the subjective element of party, ought to have following a few conditions:
1, if debtor place is carried out behavior is free behavior, namely contract law sets the 74th times abandon expiring creditor's rights and free transfer property, no matter whether debtor or beneficiary beneficiary have ill will, creditor's rights average per capita can apply for cancel.
2, if the behavior of debtor is non-gratuious, need alienee to have ill will. Alienee ill will, be when showing alienee acquires an interest from debtor place, the behavior that already knew perfectly well debtor damages the creditor's rights of creditor, and the subjective ill will that takes no account of alienee to whether have enroach on loan. Contract law the 74th in regulation: "Debtor transfers property with apparently unreasonable low, cause to creditor damage, and alienee knows this state, creditor also can request the action of debtor of people court cancel. Creditor also can request the action of debtor of people court cancel..
Here " alienee knows this state " , the property price that includes alienee to know debtor is made over already is apparent under average market value, the action that still includes alienee to know debtor at the same time will be right the creditor's rights of creditor is caused damage. If alienee knows the value that this belongings transfers is overt only under market price case, and do not tell person of this sell one's own things (namely debtor) behavior will be right creditor is caused damage, cannot maintain alienee to have ill will thereby exercise cancel counterpoises.
2, the exercise limits that cancel counterpoises
Cancel authority is a kind of creditor, like having certain limitation and range necessarily as the exercise of a kind of any rights, cancel authority also has certain limitation and range necessarily. " contract law " the 74th regulation " the exercise limits that cancel counterpoises the creditor's rights in the limit of with creditor " . Here includes two kinds of cases:
It is single loan, he can with its individual cancel of all application of in the limit of of creditor's rights amount counterpoise. For example if creditor has 500 thousand yuan creditor's rights only, the behavior exercise cancel of 500 thousand yuan of property that that can handle to debtor free or low only counterpoises. Cannot counterpoise to the behavior exercise cancel of belongings of other disciplinary action again.
The 2nd kind of circumstance is cancel of many creditor exercise when authority, when their exercise cancel counterpoises also should with respective creditor's rights in the limit of. If the belongings of creditor place punish is impartible content, have a few loan again at the same time or early or late when exercise cancel counterpoises, can part put on record, and case cognizance.
3, the exercise time that cancel counterpoises
General rule of civil code of People's Republic of China
The lawsuit that to people the court requests the 135th to protect civil rights is 3 years during effectiveness for a given period of time, law has formulary except additionally.
During effectiveness for a given period of time of the 137th lawsuit from know or ought to know the right by consideration has when enroach on. But, benefit of as a matter of expediency by enroach on sun rises more than 20 years, people court does not grant to protect. Have special case, during people court can extend litigant effectiveness for a given period of time.
During the 138th exceeds litigant effectiveness for a given period of time, party fulfills of one's own accord, do not accept restriction of litigant effectiveness for a given period of time.
Contract law of People's Republic of China abandons his the 74th times expiring because of debtor creditor's rights or free transfers property, cause to creditor damage, creditor can request the action of debtor of people court cancel. Debtor transfers property with apparently unreasonable low, cause to creditor damage, and alienee knows this state, creditor also can request the action of debtor of people court cancel.
The exercise limits that cancel counterpoises the creditor's rights in the limit of with creditor. The essential charge that creditor exercise cancel counterpoises, by debtor burden.
Since the day that authority of the 75th cancel knows from creditor or ought to know cancel particulars of a matter the exercise inside a year. Since the day that produces from the behavior of debtor counterpoise without exercise cancel inside 5 years, this cancel authority is eliminated.
According to the content in afore-mentioned articles, we are knowable, since the day that cancel authority knows from creditor or ought to know cancel particulars of a matter the exercise inside a year. Since the day that produces from the behavior of debtor counterpoise without exercise cancel inside 5 years, cancel authority can be eliminated.
