한국과 중국 민법상의 채권자취소권제도 비교연구

Abstract

The rescission right of the creditor is an ancient debt-preserving system, which is a civil law system that guarantees the repayment of debt by way of maintaining the value of the debtor’s liability assets. The creditor’s right of rescission as stipulated in the Contract Law of China is only a technically alternative method adopted in the civil law legislation in China. Although it provides the legal basis for the creditor to exercise its right of rescission, it is only applicable in the preservation of debts arising from contracts. Moreover, currently the exercise of the creditor’s right of rescission is subject to strict conditions, and the existing law and regulations lacks explicit rules on some of the conditions while other conditions are too strict to the creditor. Therefore, in China, the system of the creditor’s right of rescission in civil law needs the further improvement by the legislation or judicial interpretations. Comparing with China, especially through the more and more cases about the creditor’s right of rescission of civil law from 1997 by the economic crisis of Asia, Korea has more developed theories and experiences about this system. So the purpose of this study is to improve the legislation and judicial interpretations of the creditor’s right of rescission of civil law in China by way of the comparison between Korea and China. By comparing the theories and cases existing in Korea with the comprehensive integration of the current state of legislation and practice of China, this thesis mainly does a comparative research on several issues of the creditor’s right of rescission of civil law, such as the meaning and nature (Chapter 2), the basic elements of establishment (Chapter 3), the effects of exercise (Chapter 4), and so on. Finally, probing into the expectation and the future problems, especially the unification plan of this legal system, even treat of the unification of it between the East-Asian countries. The methods used in this study is known as the macro comparison and the micro comparison, the dynamic comparison and the static comparison. Furthermore, the charts also be used for explanation. In the judicial practice, there are always situations where the debtor conducts act of disposal on the assets by adopting the way other than those stipulated in the laws and regulations, which may harm the creditor’s right. By conforming to the objective and spirit of the legislation of the creditor’s right of rescission, this study contends that only by reasonable extension of the application of the creditor’s right of rescission will it be able to maintain the principles of fairness and honesty, so that the creditor’s right of rescission can truly meet the internal requirements when designing such legal system. As for the creditor’s right of rescission of civil law, the comparison clearly shows that in theory better the Korean opened way than the current conservation way in China, but in practice a long course may be needed.