债权让与中解除权的归属与行使

The Attribution and Exertion of Cancellation Right in Obligatory Right Cession

债权让与中解除权的归属与行使,涉及让与人、受让人与债务人之间的利益平衡。该问题的核心在于解除权是否发生、于何处发生,而非解除权的可转让性。债权让与前发生的解除权当然由让与人享有,但在债权让与后,让与人已无解除利益,其向受让人让与债权的行为可视为对解除权的默示放弃。受让人明知存在解除事由而受让债权,亦不具有合理的解除利益,应不享有解除权,但应容许受让人与让与人约定由受让人行使解除权;债权让与后,在债务人发生履行障碍时,让与人直接的合同利益已通过债权让与从受让人处获得满足,因而不具有解除利益,不享有解除权。而受让人可能仍须解除合同以摆脱约束,应认可其解除权。当让与人所负债务负担过重时,解除权应归属于让与人,受让人可在让与人行使解除权后,向其主张违约损害赔偿。

The attribution and exertion of the cancellation right in obligatory right cession involves the balance of interests between the transferor, the transferee, and the debtor. The core of this issue lies in whether and where the cancellation right occurs, rather than its transferability. The cancellation right that occurred before the cession of obligatory right surely belongs to the transferor. However, after the cession, the transferor has no interests in cancellation, and the cession of obligatory right can be regarded as an implicit waiver of the transferor’s cancellation right. The transferee, knowing that there is a reason for the cancellation, does not have reasonable cancellation interests and shall not have the right of cancellation, but shall be allowed to agree with the transferor that he exercise the right of cancellation;after the cession of obligatory right, when there are performance obstacles in the debtor, the transferor’s direct contractual interests have been satisfied from the transferee through the obligatory right cession, therefore the transferor does not have cancellation interests, and shall not have the cancellation right. However, the transferee may still need to terminate the contract to get rid of the restrictions, so shall be allowed to have the right of cancellation. The cancellation right shall belong to the transferor when his debt burden is too heavy, and the transferee may claim damages for breach of contract after the transferor exercises the right of cancellation.