Сепаратная уступка требований кредитора к поручителю: текущая позиция отечественного правопорядка и ее осмысление

Abstract

This article is devoted to the analysis of the situation in which the creditor, while retaining claims against the principal debtor under a secured obligation, assigns its claims against the guarantor to the assignee (separate assignment of the creditor’s claims against the guarantor). The author shows that, based on dogma, domestic legislation and judicial practice, several arguments pro et contra the admissibility of a separate assignment of the creditor’s claims to the guarantor can be given. At the same time, the arguments in favour of prohibiting the separate assignment of claims to the guarantor turn out to be very vulnerable to criticism. Based on the existing usefulness for the circulation of the corresponding instrument of separate assignment, the generally permissible nature of the private law method of regulating contractual relations, as well as the availability of effective tools for protecting the debtor and guarantor from abuse, the author concludes that it is necessary to support the point of view on the admissibility of separate assignment of claims to the guarantor, which is organically integrated into dogmatics, which does not recognise the accessority of belonging (following) as having a constitutive nature in securing obligations.