What are the restrictions on exercising the right of formation?

1. Right of formation under property law(1) Right of formation of creditor's rights: including the right of retrospective recognition, the right of rescission, the right of modification, the right of abandonment, the right of exemption, the right of revocation, etc.; (2) The right to form real rights: including the right to abandon real rights, the right to redeem pawn rights, etc.

2. The right of formation under the identity law (1) The right of formation of pure identity, including the right to revoke the marriage contract, the right to revoke the marriage, the right to request divorce, etc. (2) The right of formation of both identity and property nature, including the right of the heir to abandon the right of inheritance, the right of the legatee to abandon the right of inheritance, the right to divide the estate, etc. 3. Procedurally, the right of formation is based on whether it needs to be confirmed through legal procedures, and the right of formation can be divided into simple right of formation and right of action.

The simple right of formation refers to the right of formation in which the exercising party notifies the counterparty of the expression of intent to produce the effect of a change in the legal relationship. The formation of the right of action means that the change of legal relationship must be adjudicated and recognized by the court or arbitration institution in accordance with the corresponding legal procedures. The law defines those with a significant stake as having a right of action.

4. Statutory and Intentional Formation RightsFrom the perspective of statutory and intentional formation, the formation rights can be divided into statutory formation rights and intentional formation rights. The legal right of formation refers to the right of formation that arises directly in accordance with the provisions of the law, and can be exercised as long as the legal facts are completed. The right of formation refers to the right of formation that can be exercised when the parties reach an agreement on the expression of intent and achieve the content of the agreement.

In addition to the form of consensual creation, the right of formation also includes the unilateral creation of one party, such as the right of commitment.

The restrictions on the right of formation are twofold:

First, general restrictions (external restrictions). The exercise of the right of formation is first and foremost subject to external restrictions. The so-called external restriction refers to the restriction of the exercise of the formation right by the principle of good faith in civil law, the prohibition of abuse of rights, and the principle of public order and good customs on the premise of ensuring that the formation right can be freely exercised.

Of course, this restriction is a general rule for the exercise of rights. Specifically, in terms of the civil law system, some scholars believe that the provisions on the period for exercising the right of formation, that is, the period of exclusion, can be divided into three categories: (1) for individual rights of formation, there is a period of existence (such as Articles 90, 93 and 365 of the Civil Code of the Taiwan Region), but the period is usually shorter than the statute of limitations, so as to determine the legal relationship between the parties as soon as possible; (2) If the period for exercising certain formation rights is not fixed, the formation rights shall be extinguished if they are not exercised within the time limit after being urged by the other party; (3) There is no provision for a period of existence or a reminder, such as the right to claim the division of common property.

However, in any case, the principle of lapse of rights applies.

Second, special restrictions (internal restrictions) :(1) The exercise of the right of formation shall not be subject to conditions or time limits in principle. This is also a restriction based on the special effect of the right of formation.

As mentioned above, when the right holder exercises the right, it can take effect without the consent of the counterparty, which shows that it is an extreme threat to the interests of the parties and the stability of the legal relationship, so in principle, the right holder is not allowed to set conditions or time limits for exercising the right. The so-called "since the counterpart of the formation right must accept the fact that others exercise the formation right, then he should no longer be faced with a state of uncertainty". As stipulated in the second paragraph of Article 99 of the Contract Law:

Where a party claims to set offset, the other party shall be notified. The notification takes effect when it reaches the other party. There may be no conditions or duration attached to the set-off.

However, "the fulfillment of the conditions is determined by the will of the counterparty, or the time limit is clear, this limitation does not apply". (2) The exercise of the right of formation must comply with the conditions prescribed by law or agreed between the parties (except for the right of termination of the contract maker at any time in the Contract Law). (3) The expression of intent to exercise the right of formation shall not be withdrawn.

Legal Analysis: Boundaries of the Exercise of Legal Power: 1. The manner in which the right is exercised is in accordance with the law; 2. There should be a limit to the exercise of rights; 3. The purpose of exercising rights must be lawful; 4. The procedure for exercising the right to Hu Shili is in accordance with the law.

Legal basis: Article 51 of the Constitution of the People's Republic of China Citizens of the People's Republic of China shall not harm the interests of the State, society, or the collective or the legitimate freedoms and rights of other citizens when exercising their freedoms and rights.

Legal Analysis: Boundaries of Exercising Legal Rights: 1. The manner in which rights are exercised is in accordance with the law. 2. There should be a limit to the exercise of rights; 3. The purpose of exercising rights must be lawful; 4. The procedures for exercising rights are in accordance with the provisions of the law.

Legal basis: Civil Code of the People's Republic of China

Article 208:The creation, modification, transfer, and extinction of real estate rights shall be registered in accordance with the provisions of law. The creation and transfer of movable property rights shall be delivered in accordance with the provisions of law.

1. Exclusion period: The exclusion period is a period that is applicable to the formation right and limits the time limit for the exercise of the formation right. The right of formation itself has a potential threat to the stability of civil legal relations and has a certain degree of destructiveness, therefore, "the value orientation of setting the exclusion period for the right of formation is also as follows:

It is necessary to eliminate the uncertain and unstable factors in the legal acts or legal relations of the parties during the exclusion period, and determine and stabilize the relationship between the parties within the exclusion period. The exclusion period is a basic restriction of the law on the right of formation, and the legal faction tolerates the "destructiveness" of the right of formation for such a long period of time as the exclusion period, and if the person with the right of formation exercises the right of formation during the exclusion period, then the legal relationship will be stabilized; On the contrary, if the holder of the right of formation does not exercise the right of formation during the exclusion period prescribed by law, and the law will no longer tolerate the potential instability caused by the right of formation upon the expiration of the exclusion period, so that the right of formation itself will be extinguished, and the legal relationship will remain in its original state, and then be stabilized.

2. Abuse of rights: There are many ways for the law to restrict the exercise of rights, one of which is to "restrict the exercise of the rights of the right holder by giving others specific rights", and the law also adopts this method for restricting the right of formation, and the law restricts the exercise of the right of formation by giving a bona fide counterpart a right of formation. The reason why the law provides for this is to prevent the formation right holder from exercising its rights in a timely manner, resulting in an uncertain and unstable legal relationship and harming the interests of the bona fide counterpart.

3. Invalidation of rights: In principle, the right of formation shall not be subject to time limits and conditions, which is another restriction of the law on the right of formation. Since the holder of the right of formation can change the legal relationship according to his unilateral expression of will, without the cooperation of the other party, if the exercise of the right of formation is allowed to be subject to time limits and conditions, the counterpart of the person with the right of formation will be in a more disadvantageous position.

Based on this consideration, the law cannot, in principle, allow the formation of the right to be conditioned and time-limited, otherwise it will cause a serious imbalance in the status of the parties. From the perspective of the relevant content of the exercise of the right of formation, there are three types of restrictions on the exercise of the right of formation, excluding the period of exclusion, the abuse of power and the invalidation of rights. It should be noted that during the exclusion period, there is a time limit for the exercise of the formation right.

We should make correct and reasonable use of our rights and protect our rights and interests. The creditor shall not use the illegal act to demand the debtor's claim.