On The Effect Of Contract Of Paying The Debt By A Thing

In our civil law, there is no clear provision of paying the debt by a thing. However, in judicial practice, China has emerged many cases of paying the debt by a thing. But because there is no legal basis, theoretical research is also lacking, there are many disputes in the judicial practice. Around the repossession, the main concept is not clear; it is difficult to define the effectiveness of such problems. Especially to the abolition, constitute the fluidity contract problems such as directly related to court to determine the repossession effect. This paper to Tianjiao company v. Nantong Sanjian company construction land use rights disputes as the angle of view, to give the nature and effect of paying the debt by a thing.There are four chapters in this paper.The first chapter mainly introduces the details of the case, the focus of the dispute and the parties and the court's opinion at all levels of the case.The second chapter mainly analyzes the concept of paying the debt by a thing. This paper argues that, China's paying the debt by a thing should be equal to the datio in solutum, but different from the datio in solutum of the traditional civil law. The paying the debt by a thing refers to the party's agreement which replace the original payment with other, not the actual delivery. With paying the debt by a thing and new debt liquidation and debt updates, security transfer are both similarities and differences exist, in practice should pay attention to distinguish.The third chapter mainly analyzes the effect of paying the debt by a thing. This paper argues that contract of paying the debt by a thing is promissory contract. China's law prohibit the fluidity contract only stipulated in the chapter of the "mortgage" and "pledge", but did not put in the chapter of "security interest", suggesting that it is merely used to mortgage right and pledge. Prohibiting the fluidity provisions also has some problems, and there is a difference between paying the debt by a thing and fluidity contract. So in the judicial practice, should not expand explain the prohibition provisions of the fluidity.The fourth chapter puts forward some suggestions on the basis of the previous chapters. Because our country did not in the legislation clearly stipulates to paying the debt by a thing, updating of debt, new debt liquidation and security transfer system, but in practice the various systems are often difficult to distinguish, so in the judicial practice should firstly identification these systems. In order to solve the problem of the false litigation, this paper argues that should not give up eating for fear of choking, but should strengthen efforts to review, identify the facts of the case, and the establishment of related system be prevented.