The Study On Legal Issues Of The Datio In Solutum

There are many disputes on the relative problem of the datio in solutum in the academic circle as well as in actual practice world. The key to settling such disputes is to define the legal nature and efficacy of the datio in solutum. Apparently, it should be different between the conclude of the datio in solutum and the result:either the provision of the law or the promise of the party can result in the datio in solutum, as to the latter one there is a pure agreement on the datio in solutum-the contract (agreement) of the datio in solutum. The agreement is one of the types of the contract in the debt law, which is different from the result of the datio in solutum. It should be adjusted by the provisions on the nameless contract in the< the Contract Law of the P.R.C.>. The contract is established when the agreement is reached, of which the concerned party puts forward a different new prestation in order to extinguish the original contractual relationship. Under the contract of the datio in solutum, the debtor burdens the obligation of bringing out a different new prestation, while the original creditor should not claim the contractual liability arising from the original contract temporarily. However, the efficacy of the contract of the datio in solutum does not induce the result of the datio in solutum. Therefore, the contract of the datio in solutum is a consensual, unilateral and un-onerous contract. After the contract of the datio in solutum is established, neither the original contract is extinguished, nor the object of the original one is changed. If the party breaches the contract, the liability should be applied according to the concrete forms of the breach of the contract under the provisions of the nameless contract, such as the impossibility of performance, delay of performance, blemish implementation or refusal to fulfill. If the debtor of the contract of the datio in solutum performs according to the contract, the result of the datio in solutum will be achieved-the transformation of the real right of the substituted subject-matter caused the above result. Although the behavior of the real right which is different from the efficacy of the contract of the datio in solutum induces the transformation of the property right of the substituted subject matter, the result of the datio in solutum is not independent of the contract of the datio in solutum, which becomes one of the conditions of the transformation of the property right of the substituted subject matter by the party's meaning expression. Therefore, the datio in solutum is a behavior of the real right, which has the'content-causa'. Hence, datio in solutum which just changes the object of the solutum keeps in accordance with the general solution in the theory system. it is just one of the types of it in order to keep the identity with the efficacy of the original engagement. Though there is not the legal concept of the datio in solutum in the current legal document in our country, the act of the practice world of the justice has conceded the value of the datio in solutum. Recently, our country is advancing the course of establishing the, which gives the opportunity to regulating the system of the datio in solutum in it in order to guide the civil and commercial transaction act and the practice of the justice.