The Legislative Construction Of The Settlement Of The Property

On behalf of the settlement is a method of creditor to realize its creditor’s right and destroy the debt. On behalf of the property settlement is in the presence of the original debtor creditor relationship, because the original debt relationship between both sides of the party has put forward to the reality of his payment instead of the scheduled payment of consensus and debtor real payment and the establishment of the contract. On behalf of the property settlement system in Germany, Japan and Taiwan region of China’s "civil law" are clearly defined, but in the civil law of the People’s Republic of China on behalf of the property settlement is still no corresponding laws and regulations, so of the datio in solutum related issues in the academic circles still a lot of controversy. The nature of the datio in solutum similar business says or reciprocity said, said the settlement contract, special contract change, renewal of debt said, paid contract, contract to say. But China’s judicial practice and theory through said on behalf of the property settlement to contract theory and onerous contract, the establishment of the datio in solutum not only to the mutual agreement of a more realistic acceptance he kind of benefit, at the same time, the establishment of the datio in solutum is creditor to abandon the original payment by the collar at the expense of. According to that on behalf of the property settlement in the judicial practice of our country, previous judicial practice due to the controversial issues related to the generation of unliquidated, is different according to the court judgment, lead to judgment results of different CO, contrary to the principle of fairness. And in 2012 the verdict on clearly identified "on behalf of the property settlement of legal relationship" become the bulletin cases, on behalf of the property settlement in the decision to have more uniform standards, but not in the form of legislation in our country laws and regulations appear, so on behalf of the property settlement system in our country’s legislation is necessary. In our country, we should draw lessons from the current legislation situation of the settlement system in other countries (regions), and get the enlightenment to construct the legal system of the settlement of the settlement of property in our country. China has recognized the payment system, and the court also made clear in the judgment of the legal relationship of the settlement of property. As a civil law system, it is a complete statutory law to establish a complete set of legal documents in accordance with the statutory forms. Therefore China should learn from the essence of other existing generation property settlement system, national results, defined the datio in solutum in nature and the effectiveness of such issues, on behalf of the property settlement system as soon as possible in our country civil law embodied, perfect our country’s civil law system, in China on behalf of the property settlement of legal relationship guidance.