The Research Of Paying The Debt

Paying the debt by a thing is common in the judicial practice, but it is not the traditional civil law concept, lacking of legislative support and theoretical research. In essence, paying the debt by a thing is a way to replace the original repayment with dissimilar repayment to repay debts, all conform to this definition is to fulfill the object of forms, such as generation of the change, new debt liquidation and debt repayment, etc. To fulfill the object composition needs to satisfy both sides reach an agreement, the original debt, the two sides agree there is no severability existence in accordance with the law and the original repaymentand dissimilar repayment must be different. Dissimilarpayment differs from original paymenton the basic element, rather than the time of performance, the number、price、payment, etc.According to performance,paying the debt by a thing can be divided into not actual performance and actual performance. Toidentifythe effectiveness of the agreement that should adoptthe theory of contract says, on the basis of respect the principle of party autonomy, to whether there is no established, invalid or revocable situation, if noexist, effect is established. By material bonded to the effectiveness of the original debt, because to fulfill the object of purpose and a debt varies from one of the performance of the object, shall, first of all, according to the agreement between the parties, if no agreement is affirmatory, if still unable to determine the applicable law presumption of form. To have a debt agreement itself does not effect the alteration of real right. To fulfill the object of the various stakeholders can be based on contract law, property law to seek legal remedies.Flow of fluids (bet) contract is bonded forms, but forbidden by law, security law in our country, shall be lifted. Generation of discharge change of the content of the essence for debt, has not set up a new debt, shall adopt into the contract says. Changes of debt, set up new debt, eliminating old debt and should be distinguished from the change of debt. New debt repayment, the establishment of new debt, but the old debt is still alive in accordance with the law. In bonded and typical form is missing, in the current legislation in China should be explicitly stipulated in the legislation to fulfill the object of the concept, constitutive requirements and legal effect, and clearly draw lessons from foreign legislation explicitly by material bonded forms related regulations. In judicial practice, to fulfill the object phenomenon, but the referee have different standard, shall be unified. Advice specifically for by the supreme people’s court the judicial interpretation of content bonded, on to the concept, constitutive requirements, typical of bonded forms, legal effect, validity cognizance rules, rules of evidence cross-examination system specification and legal consequences of default, or issued by the supreme people’s court according to fulfill the object of guiding cases.