对债权让与通知传统理论的反思

A Reflection on The Traditional Theory about Notice of Assignment

我国学界长期以来关于债权让与通知的传统观点有检讨的必要。让与通知并非是债权让与合同的生效要件,而是对债务人产生拘束力的要件。让与通知是使债权实际发生移转的事实行为,而非准法律行为。在债权让与对债务人生效要件这一问题上,所谓的"自由主义"实际上是对德国法相关规定的误解。债权让与中的"对抗"只能是针对交易第三人;对债务人只存在是否发生效力的问题。因此,我国学界长期存在的"债权让与合同有效成立,债权让与即生效只是不能对抗债务人"的说法应予以纠正。

There is a necessity to review the traditional theory developed in our academe for long about the notice of assignment of rights. The notice of assignment is not the precondition to make a contract on assignment become effective, but the precondition to make the contract bind on its obligator. The notice of assignment is a factual fact to make credit actually transfer, but not a quasi-juristic act. As to the question on the precondition that assignment begins to bind upon obligator, the so-called ＂liberalism＂ actually resulted from the misunderstanding of pertinent provisions in German law. The person being ＂against＂ in assignment could only be the third party in transaction; As to obligator, there is only a problem whether the assignment become binding upon him. Therefore, the following saying haunting upon Chinese legal academy for long should be corrected： ＂Once a contract on assignment of rights effectively comes into being, the assignment go into effect, which could not be against obligator.＂