Right of Withdrawal. Foreword] If the parties abide by good faith, there will be basically no contract disputes. However, this is not the case in reality, and the reason why it is difficult for the party enjoying the creditor's right to realize the creditor's right is that the other party transfers the property for free or at a low price, and creates a guarantee, etc., without its knowledge, and transfers the property to repay the debt. For the above-mentioned acts that endanger creditor's rights, the contract section of the Civil Code grants the creditor the "right of revocation", which the author calls "surgery under contract law", that is, the creditor can request the court to revoke the above-mentioned act of transferring property. This article is the fourth in a series of articles on lawyer Wu Shizhu's interpretation of the Civil Code and the judicial interpretation of contracts.
Understanding the original meaning of the right of rescission in the contract section is of general significance to the lawyer's practice. What is the right of revocation of the contract and what is the object of this "revocation"?What is the legal effect of revocation?
As a contract preservation system, contract creditors are authorized to protect their claims by exercising statutory (no need to agree) rights. Therefore, the object of revocation is an act that is detrimental to the creditor's right. The progress of this judicial interpretation for contract preservation lies in the fact that the litigation preservation system of initiating a revocation lawsuit with the contract preservation system enables the contract preservation to be protected by litigation preservation, so as to avoid the failure of the right to complete the lawsuit"Where a creditor applies for preservation measures against the counterparty's property in a revocation lawsuit, the people's court shall approve it in accordance with law. ”
The object of revocacy, that is, the specific act, stipulates in Articles 538 and 539 of the Civil Code that the creditor may exercise the right of revocation when the debtor has the following acts: 1Dispose of the debtor's property rights and interests free of charge。This includes, but is not limited to, waiver of the debtor's creditor's rights, waiver of creditor's rights guarantee, gratuitous transfer of property, malicious delay, etc.;2.Although it is not gratuitous, it transfers or transfers property at an obviously unreasonable low price or increases the burden of property by providing guarantees, affecting the realization of the creditor's claim, and the debtor's counterpart knows or should know about the situation.
For the former, the debtor is a gratuitous act;The latter, from a legal point of view, is an act of collusion, and malicious collusion itself is a revocable act, which goes without saying.
The scope of the creditor's exercise of the right of avoidance cannot exceed the creditor's claim. For example, if the creditor has a monetary claim of 500,000 yuan against the debtor, and the debtor has a number of behaviors of disposing of the property free of charge or at a low price, both donating his car worth 500,000 yuan to others, and giving the property to others at a price lower than the market price of 500,000 yuan, then the creditor should request to revoke the debtor's behavior within the scope of the debtor's reduction of the liability property of 500,000 yuan, and can choose to revoke the debtor's car gift or low price** One of the acts of real estate, but it is not possible to request the revocation of the act of giving away a car and the act of low-cost ** real estate.
Based on the above introduction of legal principles, the author refers to the revocation of contract preservation as "legal surgery", and the creditor may request the court to "exclude" which part of the debtor's behavior is detrimental to the realization of the creditor's rights. In contrast to the subrogation right of "if you don't exercise the creditor's right, I will exercise it", that is, if you exercise the act that endangers the creditor's right, I have to ask the court to revoke it.
Why use the right of avoidance to protect the creditor's claim?
If the debtor's act affecting the realization of the creditor's claim is revoked, it is not legally binding from the beginning. At the same time, the Civil Code deals with the legal consequences of the revocation of a civil juristic act, that is, "the property acquired by the actor as a result of the act shall be returned;where it cannot be returned or there is no need to return it, compensation shall be made at a discounted price. This judicial interpretation clearly stipulates that if the creditor directly requests the debtor's counterpart to bear the legal consequences such as returning the property, compensating for the discount, and performing the due debts to the debtor in a lawsuit, the people's court shall support it in accordance with law. This is the original intention of the contract preservation system.
Different from the provisions on subrogation, this judicial interpretation also gives creditors the right to sue for preservation. That is, when a revocation lawsuit is filed, litigation preservation measures may be taken against the property of the counterparty (the person receiving the property).This is more effective than the guarantee it provides. In this sense, once the right of avoidance is established, the realization of the creditor's claim is guaranteed by the coercive power of the state.
The creditor may apply for enforcement against the counterparty's property. The judicial interpretation stipulates that if the avoidance lawsuit is concluded, including the creditor who can be tried together as mentioned later, applies for compulsory enforcement based on the effective legal documents arising from the lawsuit with the debtor or the avoidance lawsuit, the people's court may take enforcement measures against the debtor's rights against the counterparty to realize the creditor's claim. This is a concrete embodiment of the effectiveness of contract preservation and the economic principle from the substantive perspective.
This judicial interpretation provides for the extension of the relevant legal concepts in the right of revocation of the Civil Code.
Article 42 is correct"Obviously unreasonable" low price or **, gave the judging criteria:
1.Reference system: The people's court shall make a determination in accordance with the judgment of the general business operator in the place where the transaction is conducted, and with reference to the market transaction price of the place of transaction or the price department's guide price at the time of the transaction.
2.Quantitative criteria. If the transfer does not reach 70% of the market transaction price or guide price of the place of transaction at the time of the transaction, it can generally be determined as an "obviously unreasonable low price";If the transferee ** is higher than 30% of the market transaction price or the guide price of the place of transaction at the time of the transaction, it can generally be determined to be "obviously unreasonable".
3.There is no restriction between specific related parties. Where the debtor and the counterpart have a kinship or related relationship, they are not subject to the percentage provided for in the preceding paragraph.
Seven. 10. 30% limit.
Article 43 is in fact a provision for malicious collusion. When the debtor uses obviously unreasonable ** to carry out acts such as bartering property, repaying debts in kind, leasing or leasing property, or licensing the use of intellectual property rights, etc., affecting the realization of the creditor's creditor's rights, and the debtor's counterpart knows or should know about the situation, and the creditor requests to revoke the debtor's act, the people's court shall support it in accordance with the provisions of Article 539 of the Civil Code.
Combined with the provisions of Article 154 of the Civil Code, its constituent elements are: 1Bad faith to damage: requiring the debtor and related parties to be aware of the harm that will be caused to creditors and to pursue (hope) the occurrence of damage;2.There must be collusion between the actor and the counterparty: both the debtor and the affiliate must be intentionally and intentionally in contact;3.Objectively harms the legitimate rights and interests of creditors.
However, when exercising the right of revocation in respect of a remunerated act, it is different from the right of revocation in respect of a gratuitous assignmentThe burden of proof in bad faith lies with the creditor who brought the right of avoidance.
InSubject of the LitigationThe creditor shall file a lawsuit for avoidance with the debtor and the debtor's counterpartas a co-defendant, the people's court at the place of the debtor's or counterparty's domicile has jurisdiction, except where the provisions on exclusive jurisdiction shall be applied in accordance with law.
This structure and jurisdiction is different from subrogation actions, which are limited to the defendant's domicile unless there is exclusive jurisdiction. There are two courts (or more than one if there are many defendants): the court of the debtor or the counterparty's domicile. In a subrogation action, the debtor is a third party and a co-defendant in an avoidance action.
As with subrogation, if two or more creditors file an action for revocation of the debtor's same act, the people's court may join the trial. In addition, if the creditor requests that the people's court accepting the avoidance lawsuit hear the creditor's rights and debts relationship between the creditor and the debtor together, and it is within the jurisdiction of that people's court, it may be tried together.
Determination of litigation claims: The importance of the creditor's claim for avoidance: In a creditor's revocation lawsuit, the subject matter of the revocation act can be divided, and the people's court should support the party's claim to revoke the debtor's act within the scope of the affected creditor's rights;Where the subject matter of the act to be revoked is inseparable, and the creditor claims that the debtor's act be revoked in its entirety, the people's court shall support it.
How to understand this abstract provision?
In the case of divisible subject matter or property, it is sufficient to exercise the right of avoidance to the extent that the claim can be restored. For example, if the debtor transfers a car or house free of charge, and the creditor's right is only 200,000 yuan, then only the part of the transferred car can be revoked.
For an indivisible subject matter or property, such as a house, the creditor has a monetary claim of 500,000 yuan against the debtor, and the debtor gives the property to others at a price lower than the market price of 1 million yuan, at which time the creditor can revoke the entire act of disposing of the property at a low price, and is not limited to the part that is only 500,000 yuan lower than the market price. This judicial interpretation is a supplementary provision to the "scope of exercise of the right of revocation" in the above-mentioned general provisions of the Civil Code.
Key Burden of Proof:In addition, in the case of a malicious type of avoidance lawsuit such as an obviously unreasonably low price, the creditor must have sufficient evidence and evidence that can be found by the court to prove that the other party has bad faith before filing a lawsuit.
Statute of limitations for the right of avoidance:In principle, the right of revocation shall be exercised within one year from the date on which the right holder knows or should know the reason for revocation, but if it is not exercised within five years from the date of occurrence of the civil juristic act, the right of revocation shall be extinguished. Stipulating the standard for calculating the period as "the date on which the parties knew or should have known the reasons for revocation" is conducive to protecting the interests of the person with the right of revocation and preventing him from missing the exercise of the right of revocation because he does not know the existence of the reasons for revocation. At the same time, supplemented by an objective period of "within five years from the date of occurrence of the civil juristic act", it is conducive to the stability of legal relations, the stability of transaction order, and the maintenance of transaction security.
The costs of exercising the right of avoidance are not limited to the costs of litigation borne by the debtor:Reasonable lawyer's fees, travel expenses, and other expenses paid by creditors for exercising the right of revocation may be found to be "necessary expenses" as provided for in article 540 of the Civil Code.