Альтернативные способы защиты прав цессионария, не влекущие нарушение прав должника

Abstract

In this article, the author draws attention to a legislative misunderstanding in the form of depriving the debtor of the right to raise objections to the assignee in the context of Article 386 of the Civil Code of the Russian Federation, as protecting the rights of the assignee, but grossly violating the principle of inadmissibility of deteriorating the position of the debtor upon assignment of rights. The author proposed to amend the civil legislation (Articles 386 and 390 of the Civil Code of the Russian Federation) in order to establish alternative methods of protecting the rights of the assignee that do not entail violation of the debtor’s rights. The author believes that the obligation to disclose the grounds for opposition should lie not with the debtor, but with the assignor, as the person responsible for the absence of such grounds. In addition, based on the study of foreign legal orders, the author concluded that the deprivation of the debtor’s right to raise objections to the assignee can be formalized on the basis of an agreement concluded between the assignee and the debtor, except in cases where the parties to the legal relationship are consumers.