禁止转让债权的范围和效力研究:以《民法典》规则为中心

A Study on the Scope and Effectiveness of Prohibited Assignment of Creditor’s Rights:Focusing on the Rules of the Civil Code

为妥当权衡私主体利益保护和债权流通价值保障,对债权转让的限制存在法定限制和约定限制。基于公共利益或者私利益保护的法定限制都应符合比例原则,这有助于判断规范的妥当性,也有助于司法对违反限制后果更为多元化的处理。据此,金融安全的公共利益不能否认未来债权的可转让性,债权部分转让也需要考虑金钱债权和非金钱债权的区分、诉讼规则的协调。违反约定限制的债权转让对受让人的效力,《民法典》妥当地区分了金钱债权和非金钱债权、受让人的善意恶意。无论是金钱债权还是非金钱债权,受让人都能够取得债权;但是,如果被转让的是非金钱债权且受让人具有明知或者重大过失的恶意时,债务人有权选择向受让人主张债权禁止转让的抗辩。

In order to achieve a proper balance between protecting the interests of private subjects and ensuring the value of the circulation of rights to performance,there are statutory and contractual restrictions on the assignment of rights.Statutory restrictions based on protecting the public or private interests should comply with the principle of proportionality,which is helpful to judge the appropriateness of regulations and can help the judiciary to deal with the violations of restrictions in more diversified ways.According to this principle,financial security,as a kind of public interests,cannot deny the assignability of future rights,and the partial assignment of a right needs to take the following into consideration:the distinction between monetary rights and non-monetary rights and the coordination with procedural rules.As for the effect of the assignment in breach of a non-assignment agreement between the assignor and the obligor,Civil Code properly distinguishes between monetary rights and non-monetary rights,and bona fide and mala fide of the assignee.The assignee can obtain the right,whether it is a monetary or non-monetary right.However,in the case of the assignment of a non-monetary right,if the assignee has malice of knowing the agreement or ignoring it out of gross negligence,the obligor will have the right to claim the defense against the assignee depending on the non-assignment clauses.