[＂French＂ life] How to solve the ＂triangular debt＂ of money in the Civil Code？

In today’s society, the ever-changing changes make people pursue higher and higher efficiency, and a series of systems to encourage trade and promote transactions have followed, which has been well reflected in the provisions of the Civil Code on the transfer of creditor’s rights. Especially in dealing with money "triangle debt", the relevant provisions of the Civil Code can greatly improve the transaction efficiency.

Case: Party A bears a debt of 1 million yuan to Party B, and Party C takes the mortgage of its house A as a guarantee and handles the mortgage registration. It is agreed between Party A and Party B that the creditor’s rights of RMB 1 million shall not be transferred to a third party. Later Party B transferred the creditor’s right to informed Party D and informed the debtor A.. After the debt of 1 million yuan expired, Ding asked Party A to repay the debt of 1 million yuan, but Party A refused to repay it on the grounds of unpaid repayment ability. Can Ding show C that he is the mortgagee of House A and then realize the mortgage?

Article 545 of the Civil Code A creditor may assign all or part of his creditor’s rights to a third party …

If the parties agree that the non-monetary creditor’s rights may not be transferred, they may not confront a bona fide third party. If the parties agree that the money and creditor’s rights are not transferable, they may not confront a third party.

Article 547 of the Civil Code Where a creditor assigns his creditor’s rights, the assignee obtains the subordinate rights related to the creditor’s rights, except that the subordinate rights belong exclusively to the creditor.

The transferee’s acquisition of the subordinate right shall not be affected by the fact that the subordinate right has not gone through the transfer registration formalities or transferred possession.

Prosecutor’s analysis: In this case, although Ding knew the agreement between Party A and Party B that the creditor’s rights of 1 million yuan could not be transferred, the creditor’s rights were monetary claims. According to the stipulation that "if the parties agreed that the creditor’s rights of money could not be transferred, they could not be opposed to a third party", whether Ding knew it or not, the agreement between Party A and Party B could not be opposed to a third party, so the transfer of the creditor’s rights was valid. The creditor’s right of 1 million yuan of Party B is transferred to Party D, and the mortgage right of Party B is transferred to Party D with it. Of course, Party D enjoys the mortgage right of House A, and it is not necessary to handle the transfer registration. Therefore, D can ask C to realize the mortgage right.

Prosecutor’s tips

The transfer of creditor’s rights needs to meet the following three requirements:

1. Creditor’s rights are assignable, that is, there is no situation that cannot be assigned according to the nature of creditor’s rights, the agreement of the parties and the legal provisions.

2. There is an effective creditor’s rights transfer agreement between the transferor and the transferee.

3. Follow the legal form. Creditor’s rights, especially monetary creditor’s rights, have strong liquidity. There is no obvious legal interest in the agreement between the creditor and the debtor that the creditor’s rights shall not be transferred, and the transfer of money creditor’s rights will not harm the debtor’s interests, on the contrary, it can greatly improve the transaction efficiency. Where the creditor’s rights are transferred, the subordinate rights shall be transferred together. Common subordinate rights include mortgage, pledge, lien, deposit, guarantee, etc.

The civil code clearly stipulates that the subordinate right will be transferred with the transfer of the principal right, and will not be affected by the publicity methods such as registration or transfer of possession, which will also effectively improve the transaction efficiency.

Original title: "Life in French] How to solve the" triangular debt "of money in the Civil Code? 》

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