債権者代位権と債務者の無資力
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概要
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Japanese civil law Article 423 are regulating that the creditor may, for the purpose of preserving an obligation of his own, exercise the rights belonging to the debtor. In principle, no one can exercise the rights of any person other than himself, but the creditor may, when necessary to protect and preserve his claim, exercise rights belonging his debtor. The reason is that the entire property of debtor forms security for his creditor; that is to say, in case the debtor fails to perform the obligation, the creditor may obtain performance by seizing and selling all the property. But such things as obligations,which are included among the debtor's properties, may not be at once appropriated for performance. Besides, when the debtor is burdened with a heavy obligation, it sometimes happens that he will not voluntarily exercise his rights as he does not stand to gain anything by pushing third parties (namely the debtor's debtors) and collecting his loans from them only to have them taken over by his own creditor in turn. When it comes to the worst, there are cases where the debtor actually conspires with his own debtors in order to injure the interest of creditor; and if the debtor persists in neglecting to exercise his rights and, on the contrary, reduces his assets, the creditor's security thereby injured, and it may eventually come to pass that the creditor will not be able to obtain performance of the outstanding obligation in his favour. The creditor is therefore enabled by the present Article to exercise rights belonging to debtor in order to protect and preserve his rights, that is to say, the creditor is entitled, for the purpose of preserving his rights, to exercise rights against third debtors in the name of the debtor notwithstanding the non consent of the latter. There are two questions that after the creditor exercise the rights against third debtors, if he may get payment prior than the other cerditor. The judicial precedent had admited it in fact, and common doctrine were admited it too. The other question is if it need the debtor's insolvenncy for the condition to excercise this right. This paper are focus to research this question. The result are the creditor can get payment prior than other creditors and need not the condition of debtor's insolvency but need the debtor's responsible for delay to perform its debt.
- 桃山学院大学の論文
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