Research On The Co-existence Of Debt Undertaking

The co-existence of debt undertaking originates in Germany. With theeconomy growth, some of the civil law countries have legislated for thissystem while most others have recognized and stipulated it in theory.On contrast, debt undertaking is merely provided in Article84in theContract Law of the People’s Republic of China. The provision is in factirrelevant to the co-existence of debt undertaking but commonly knownas the regulation regarding the exemption of debt undertaking. However,enormous cases regarding the co-existence of debt undertaking arise inpractice. The lack of provisions caused difficulties when applying lawsand verifying the facts. Therefore, the co-existence of debtundertaking was selected as the topic of this thesis. The theories andregulations in Germany, Japan and Taiwan in China were utilized to analyzeand study this system from both the theory and practice aspects in orderto promote the development of this system in China.In Chapter I, analysis were carried out on key issues in theco-existence of debt undertaking which are essential for forming thesystem. At first, I set out different definitions of co-existence ofdebt undertaking in various countries and re-defined it from my pointof view. Secondly, I indicated the theory is based on the consistencyprinciple and is an exception to the relative theory in the meanwhile.I brought in the theory of juristic act of real right. The co-existence of debt undertaking is quasi juristic act of real right and hence hasthe nature of relative abstraction. Ultimately, I analyzed disputableissues in its constitutive elements and legal validity.In Chapter II, I elaborated on our progress in forming the system.I compared three drafts of civil code edited by Professor Liming Wang,Huixing Liang and Guodong Xu and analyzed the pros and cons in their draftsrespectively. I shared my opinion on forming the system which were basedon the theory of balanced benefits among the creditor, the debtor andthe undertaker.A case study was put at the beginning of Chapter III to explain thedifficulties in ascertaining some similar legal acts like theco-existence of debt undertaking, joint and several liability guarantee,performing by a third party and the exemption of debt undertaking. Forthe time being, the judges had to determine the nature of the legal actat their own discretion which might lead to diverse trial results. Iset out the criteria for ascertaining the facts which were also basedon the theory of balanced benefits among three parties involved. Iclarified laws and principles applied in the cases and proposed to trya case following equity principle. Eventually, I suggested to includethe co-existence of debt undertaking in the implementation plan anddiscussed about the plan selection in the enforcement of the settlementagreement.