摘要
债权多重转让是债权人将同一债权重复转让给两个以上受让人的行为.《民法典》没有规定债权多重转让的概念及一般规则,只在"保理合同"一章第 768 条规定了应收账款债权的多重转让规则.借鉴这一规定,《合同编通则解释》第 50 条规定了债权多重转让的一般规则;确认了通知在先效力优先的规则;规定了在债权多重转让中债务人对不同受让人履行行为效力的规则;规定了如何判断通知在先的认定规则.对没有规定的其他债权多重转让规则,如登记在先与通知在先冲突、数个通知同时到达或者到达时间不明、通知在先的受让人破产、被转让债权的瑕疵担保、与债权让与担保竞合等,还应当进一步完善.
Abstract
Multiple assignments of claims is the act of a creditor assigning the same claim to more than two subjects.Traditional civil law recognizes the rule of multiple assignments of claims,so this is not a new issue in debt law.In our long-standing planned economy,the rule of law on contracts was not sound,so there was no possibility of applying such a rule of the law of obligations.When the 1999 Con-tract Law was enacted,multiple assignments of claims were not correctly judged,and thus were not pro-vided for in the Law.During the period of reform and opening-up,China's market economy has been con-tinuously improved.In particular,the divestment of non-performing assets by state-owned banks has created a large number of disputes over multiple assignments of claims,and similar situations have oc-curred from time to time in other economic fields,making the regulation of multiple assignments of claims inevitable.At the time of the codification of the Civil Code,the draft provided for a rule on multiple as-signments of claims,but the rule was ultimately set forth in article 768 of the chapter on"Factoring Con-tracts"as a rule on multiple assignments of claims on receivables.Article 50 of the Interpretation of the General Principles of the Contracts Code establishes a general rule on multiple assignments of claims,drawing on the provisions of article 768 of the Civil Code.With respect to the internal effects of multiple assignments of claims,the priority of notification model is adopted,recognizing the priority rule of the prior effect of notification.With respect to the external effects of the assignment of claims,the protection of the debtor is strengthened by determining that the agreement on the assignment of claims that reaches the debtor first is effective against the debtor,and that the performance of the assignee with the first noti-fication is valid performance.It also protects the rights and interests of assignees with prior notification and relieves the losses of other assignees who accept performance without acquiring a claim.It also pro-vides rules on the effectiveness of performance by the debtor to different assignees and on how to deter-mine the precedence of notification.As this rule is issue-oriented,mainly focusing on the consequences of performance by the debtor of multiple assignments of claims to different assignees and explaining how to determine"prior notification",it highlights the needs of judicial operation but creates the problem that the general rule on multiple assignments of claims is incomplete and not systematized.The rules that need to be further improved are:(i)where there is a conflict between registration and notification,considera-tion may be given to protecting the interests of the transferee whose registration is first,invalidating the debtor's performance,requiring performance to be made to the transferee whose registration is first and claiming restitution of unjustified enrichment against the transferee who accepts the performance;(ii)if several notices arrive at the same time or at an unspecified time,performance by the debtor to any one of the assignees is effective in satisfaction for the protection of the debtor and in accordance with the debtor's own judgement;(iii)if the prior assignee is notified of the insolvency,the claim acquired by it becomes property of the insolvency estate and the debt performed by the debtor should enter the insolvency estate of the assignee without the possibility of a subsequent assignee being subordinated;(iv)in order to safe-guard the assignee's access to the benefit of the claim,the assignor is liable to the assignee under the con-tract for the assignment of the claim for a defective security when the assigned claim does not exist,de-creases in value or is claimed by a third party.
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