Study On The Agreement Of Paying The Debt By A Thing

Paying the debt by a thing comes from practice, is the way that the parties agreed to his kind of payment instead of scheduled payment to realize creditor’s rights. At present, there is no express term of the paying the debt by a thing in the law of China in theory for its research have just started and a big controversy, different identified and processing results in judicial practice real hard to guarantee the legal interests of fairness and justice, seriously, false litigation practice even abuse by paying the debt by a thing to seek improper benefit case emerge. Therefore, it is necessary to investigate the paying the debt by a thing to its legal nature, effectiveness and responsibility defined, and improve the measures, in order to better realize its value system.The whole text is divided into five parts:Part one:The substantive part of the case through two different judgments in similar cases, leads to thinking on issues related to the paying the debt by a thing:The legal nature of it which should belong to, what their legal effect, the parties would be contrary to matter what the law should bear the debt agreement responsibility, and what judicial practice make conclusion on the different kinds of paying the debt by a thing.Part two:The article from the broad sense of bonded to define the object, expound its meaning, constitutive requirements and legal characteristics, classification, and using the burden behavior and disposition analysis the paying the debt by a thing structured, the agreement of paying the debt by a thing as the object to the paying the debt by a thing of phase behavior, and will its creditor’s right as a contract, to fulfill his behavior to pay as punishment stage of paying the debt by a thing, and identify it as the real right behavior. At the same time, through to the generation of datio of solutum system overview, to include it in paying the debt by a thing, the object should have effect for disciplinary actions to the paying the debt by a thing.Part three:With the agreement of paying the debt by a thing nature of existing ideas, into contract says, practice and disposition action said, this article through to practice speaking disposition contract says is reasonable and unreasonable place are discussed, and the combination of the supreme people’s court judge cases to think paying the debt by a thing with the law nature of consensual, cause of, subordination and free.Part four:After the agreement of paying the debt by a thing is established, can produce binding on the parties. The phase of burden behavior in an agreement of paying the debt by a thing, because of the original credit relationship is invalid, the debtor or the third person does not need to bear the liability for breach of contract; If the agreement is invalid, also not be liable for breach of contract, but it is caused by fault of the parties contract, and incur losses, should bear defect liability of the agreement, If the alternative material or by defects of right, while paying the debt by a thing as the contract free of charge to the object, but still according to the relationship between the original debt default or damage compensation liability. Indisposition action stage to fulfill the object, according to the contract agreed by the parties not to fulfill or completely to bear the payment obligation, should bear the liability for breach of contract, if cause losses, should bear the liability for damages.Part five:By making difference between paying the debt by a thing and liquid mortgage, change of the debt, new debt repayment, transferring guarantee, and then on to a debt agreement identified in a variety of circumstances, it is concluded that only conclude before the expiration of the debt repayment period, and in the nature of guarantee to fulfill the object just as liquid mortgage, has the update of debt and the content of guarantee to fulfill the object shall be void, new debt repayment is to fulfill a. And formulating the improving suggestions on the legislation and the judicial, proposed to by paying the debt by a thing as legal situation of termination of contract.