Research On The System Of Recycling

Datio in solutum as overseas mature legislative cases in the civil law countries and regions, has been proven by the judiciary that it can be solved in the judicial practice to appear more and more in his pay instead of the scheduled payment to the debt destroyed phenomenon. Also datio in solutum case more and more, but there is no legislation on the provisions of datio in solutum in our country. Theoretical study of generation of material discharge system, studying datio in solutum of scholars and corresponding writings is not a lot. The judicial practice process, only some similar concepts, and has certain transplantation. Through guiding principle stipulated in the law, and the comparison of similar system, for cases of datio in solutum, the judge can make a decision in the judicial activities, but it is far from the need more and more realistic. In this paper, based on the background of topics, datio in solutum is studied.Datio in solutum in our country draw lessons from a large number of mature legislative cases of continental law system. Among them, datio in solutum of Germany, Japan in the judicial practice for many years test conditions are mature, but on some specific issues to explore, conclusions are sometimes very different. This requires our country in the legislation in the absorption and learning at the same time, study carefully and seriously. Drew lessons from overseas legislation and theoretical research results, and combined with the actual situation in our country, set by the method of synthesis and operability. Our country Taiwan area is part of our territory, and the mainland are closely linked, both in the cultural inheritance and in legislation and judicial practice are very close, so datio in solutum in Taiwan has obvious significance to the establishment of datio in solutum in the mainland.Academia and practice on the research of datio in solutum lack some innovative suggestions of actual legislation and practical operation generation on datio in solutum in China. Thus, datio in solutum system in our country presents the provisions are not clear, substitute the liability for guaranteeing the drawbacks are not specific, the third people pay off phenomenon in datio in solutum of lacking of regulation, and value measurement is error scheduled to pay with his kind of payment. This article in the writing process using the method of comparative analysis and value analysis method, on datio in solutum to find a way to solve the problems existing in the process, involving value judgments and both sides benefit measure problem, conform to the theory of logicand common sense, also seek with a country’s existing legislative attitude and value orientation. By comparing the domestic and overseas countries on liquidation of generation of related research, combined with China’s national conditions put forward Suggestions of perfecting our country’s generation of material discharge system countermeasures. By comparing the domestic and overseas countries related research on datio in solutum, combined with China’s national conditions put forward suggestions of perfecting our country’s datio in solutum system.Based on the above, the author thinks that first, the effectiveness of datio in solutum is the same as settlement. The parties ready to replace first agreed settlement of the claim, then the debt reality delivery other kind of payment, to perform the payment obligation. Creditor’s rights and the like guaranteed creditor’s rights from the creditor’s rights is after the settlement of contract for datio in solutum to cease to exist. Creditors can claim is invalid or the result of the dissatisfied with the behavior of the application for cancellation. Second, the principle of freedom of contract in accordance with the "contract law" and similar rules to implement datio in solutum will give judge whose theoretic quality is not high In the lower court bring confusion. Always adhereing to physical characteristics of datio in solutum, introduce the datio in solutum booking concept to flexible process datio in solutum that isn’t actual performance pay. Third, for the third datio in solutum, it’s paying for the defective parts is different from the general generation bear the liability for guaranteeing the drawbacks. Only in this case, clear that debt relationship exists, and the original debt should still be implemented by the debtor.Fourth, datio in solutum of part pay off the balance of measure to combine the subjective will of the parties. The author hopes it better serves the market transaction and the judicial practice with the guidance of the legal norms, through the claims that datio in solutum is written into the contract law in the civil code of the opportunity.