The Study Of The Coexistence Of Debt Undertaking

The coexistence of debt undertaking is in the civil law easily the system which is neglected by the human, often discussing very few several, but its existence's basic value lies in safeguards the creditor to realize own creditor's rights well. It has been studied theoretically in the mainland legal system country as well as our country Taiwan area, in practice some legislative stipulation or court legal precedent, but in our country mainland, because the legislative development is imperfect, the court legal precedent cannot become the legal origin, so in the theory knew that on presents the misunderstanding, has the confusion in being suitable. Taking this into consideration, the author thinks that has the necessity to undertake regarding the coexisting debt conducts thorough and the system research, and hopes that plays certain role by the time regarding our country mainland's legal science research and the legal practice.The first part of the article the concept which starts from the coexisting debt obtains, to display each mainland legal system country as well as our country Taiwan area the definition which undertakes about the coexisting debt, place of the analysis difference, finally the author obtained coexisting the debt to undertake is refers to the third person to join to the debt relations which already saved becomes the new debtor, with original debtor completely or part joint burden its identical debt. And the author believed that the coexistence of debt undertaking must refer to debt shifting merely. Then according to the above, the author in detail elaborated the characteristic which, own nature of the coexisting debt, to form debt nature, system value and so on. The author proposed that the coexisting debt undertakes the debt nature which forms not to be simple qualitative, but must act according to the different situation to make the differential treatment.The second part of the article main elaboration is discrimination about the coexistence of debt undertaking with other related or similar concept. This partial contents are first detailed regarding the coexistence of debt undertaking with the relief debt undertaking, the guarantee, the fulfillment to undertake, the contract to undertake, the contract to join and so on concepts to carry on the same spot and the diversity analysis, achieved the concept to be defined, is suitable accurately. Next this partial contents carry on the comparison regarding the mainland legal system and the UK-US legal system about this system or similar system.The third part of the article main elaboration is the coexistence of debt undertaking about elements as well as each type. This part first in detail elaborated must constitute the coexisting debt to undertake must have three basic important elements, namely must take the original debt effective existence as the foundation, the debt have between the transferability, the litigant to exist meets one's satisfaction. And has not carried on the multianalysis proof in view of an important elements item of under content. Then according to our country Taiwan area the classification which undertakes about the coexisting debt, divides into two kinds it, gives to elaborate separately. Finally the author specially peeps its complete picture in order for this reason.The fourth part of the article main elaboration is efforts about the coexistence of debt undertaking. This part through to between each litigant's legal relationship analysis, thus obtains has the different legal effect from this. Moreover in this part, the author elaborated in detail defenses , involved to contradicts the concrete situation which the power produced as well as contradicts the power being suitable. As well as undertakes the agreement cancellation question about limitation of action's question and the coexisting debt, cheats, the original debtor in view of the creditor to cheat, abolishes the power person's notice behavior and so on to carry on the elaboration.The fifth part of the article mainly elaborates our country mainland the legislative research which and the judicial practice question undertakes about the coexisting debt. This part in the code civil draft which in view of Professor Liang Huixing, Professor Wang Liming, Professor Xu Guodong three scholars drafts the stipulation which undertakes about the coexisting debt, has carried on the thorough analysis discussion, proposed the scholar about this part of legislations is imperfect,has many cracks. Next author's through reality in each kind of case, has analyzed the legal practice worker's processing mode, and has given author's evaluation. Finally the 84th stipulation carries on the analysis regarding "People's Republic of China Law of contract", thought that this is the stipulation which by no means undertakes regarding the coexisting debt, and how in view of regarding should solve the example problem which in the judicial practice about the coexistence of debt undertaking to put forward the proposal.