日本债权让与规定中债务人的承诺——兼论我国未来民事立法的取舍

On the Recognition of the Debtor in Assignment of Creditor’s Rights of Japan: With a Discussion on the Choices of Prospective Civil Legislation in China

《日本民法典》对债权让与通知前债务人主动承诺债权让与的效力做出了规定,包括"保留异议的承诺"和"未保留异议的承诺"两种情形。就前者而言,其与让与通知完全一样,既能使得债权让与的效力可以对抗债务人,又能保证债务人可以向受让人主张原本能够对抗让与人的事由。就后者而言,除了使得债权让与之效力可以对抗债务人之外,债务人将失去抗辩权,受让人可以安心地受让该债权。实际上,保留异议的承诺之效力可以被让与通知的效力所吸收。未保留异议的承诺违背了债权让与中需要维持债之关系同一性的基本法理,并不可取。我国《合同法》第80条第1款已经对债权让与通知做出了规定,《日本民法典》就债权让与中规定的债务人承诺不宜为我国未来民事立法所仿效。

The Japanese civil code stipulates "recognition of the debtor with objections" and "recognition of the debtor without objections" when the debtor recognizes assignment of creditor’s rights before notice of assignment. As to recognition of the debtor with objections, the legal status of the debtor is the same as it is at the situation of notice of assignment. As a result, the effectiveness of assignment of creditor’s rights can withstand the debtor, meanwhile, the debtor can claim its demur against the transferor to the assignee. As to recognition of the debtor without objections, the legal status of defense of the debtor to the transferor can not transfer to the assignee, so the assignee can accept the creditor’s rights securely. In fact, the effectiveness of recognition of the debtor with objections can be absorbed by the effectiveness of notice of assignment. Recognition of the debtor without objections is not feasible because it violates basic legal principles of maintaining the identity of debt in the case of assignment of creditor’s rights. Paragraph 1 of article 80 of China’s Contract Law has already made provisions to notice of assignment of creditor’s rights. The system of recognition of the debtor in assignment of creditor’s rights stipulated in the civil code of Japan is not appropriate to be adopted in prospective civil legislation of our country.