The debtor's cancellation right refers to that when the debtor gives up his creditor's right to a third party and disposes of the property for free or at a low price, which causes damage to the creditor's right, the creditor may request the court to cancel the debtor's behavior according to law.
The difference between these two rights is mainly manifested in four aspects:
1, the constituent elements are different.
The constitution of subrogation requires not only the existence of true and lawful creditor's rights due between the creditor and the debtor, but also the existence of true and lawful creditor's rights due between the debtor and its debtor.
The constitution of the right of revocation only requires that there should be real and legal creditor's rights between the creditor and the debtor, regardless of whether there is due creditor's rights between the debtor and the third party.
2. The purpose is different.
The exercise of subrogation is to prevent the debtor's property from improperly reducing production; The exercise of cancellation right is to restore the debtor's property.
3. Different subjective faults.
The "procrastination" in subrogation is an objective judgment, regardless of the debtor's subjective fault;
The subjective elements of the establishment of the right of revocation require the debtor to do it maliciously with others knowing that his actions are harmful to the creditor's rights. When the debtor transfers the property for free or at a low price, the creditor shall exercise the right of revocation, knowing that the debtor's behavior will cause damage to the creditor's rights and asking the beneficiary to benefit, that is, the victim should also be malicious.
4. The limitation of action is different.
The limitation of subrogation must be exercised within three years after the expiration of the creditor's rights, and the provisions of suspension and interruption of limitation can be applied;
The right of revocation shall be exercised within one year from the date when the creditor knows or should know the reasons for revocation. If the cancellation right is not exercised within five years from the date of debt entry, the cancellation right shall be extinguished.
Extended data:
The creditor may exercise the creditor's right of subrogation and cancellation at the same time.
1, and exercise different functions that will confuse subrogation and cancellation right at the same time. The main purpose of creditor's cancellation right is to prevent the debtor's debt property from being improperly reduced, while the main purpose of creditor's subrogation right is to prevent the debtor's debt property from decreasing instead of increasing.
It is precisely because of the different purposes of system design that their scope of application and elements are also different, so they cannot be substituted for each other. At the same time, it is argued that the two systems will replace each other in terms of system functions, which is inconsistent with the purpose of setting up two systems by law.
2. At the same time, exercising subrogation and revocation will confuse the applicable objects. Subrogation is a passive behavior against the debtor's delay in exercising his creditor's rights, aiming at increasing the debtor's property; The right of revocation is aimed at the debtor's positive behavior of improper disposal of property, aiming at restoring the debtor's property.
In some cases, the creditor may also have the elements of subrogation after exercising the right of cancellation. For example, in the case that the debtor and the third party reach an agreement to postpone the performance of the debt indefinitely, the debtor has not completely disposed of its property and its creditor's rights still exist.
The debtor only delayed the time to claim the creditor's rights, which shows that the debtor is actually lazy in exercising the creditor's rights. Therefore, the creditor in this case can claim subrogation after exercising the cancellation right. But this situation is relatively rare.
Of course, after the creditor exercises the cancellation right, if there is no restitution between the debtor and the third party, the creditor can have many choices:
First, in the name of the debtor, directly request the counterpart to return the original or return the unjust enrichment;
The second is to ask the court to execute the judgment of canceling the contract in the name of the debtor. This situation is called subrogation application execution. Subrogation application for execution is a means of enforcement, not the power of legal creditor's rights, nor the method of debt preservation. In subrogation execution, only the creditor's rights of the person subjected to execution against the third party are included as the debtor's responsible property into the object of execution. Therefore, it is obviously different from the exercise of subrogation.
3. Simultaneous exercise will confuse the scope of subrogation and revocation. It is generally believed that the scope of the right of revocation is limited to the creditor's rights of all creditors, and the exercise of subrogation must be limited to this creditor's right. At the same time, it breaks the difference between subrogation and cancellation right in the scope of exercise.
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