On The Nature And Validity Of Pay A Debt In Kind

Although a large number of pay-a-debt-in-kind contracts exist in our society, however, it's not clearly defined in current law. In our current law system, the pay-a-debt-in-kind contract is ruled by judicial interpretations, departmental rules, industry standards, local government regulations. In this circumstance, the nature and the validity of the pay-a-debt-in-kind contract is in controversy among different courts. Though Article 24 of judicial interpretation stipulates the circumstance of signing a borrow-and-loan contract and signing a sales contract at the same time or subsequently after it, due to the complexity of the practice, this stipulation of the judicial interpretation is not enough. So this dissertation tries to analysis the validity of the pay-a-debt-in-kind contract, the application of related rules, and then gets a conclusion.Besides the introduction and conclusion, this dissertation is divided into six parts.The first part is the analysis of the cases. In this part, cases of pay-a-debt-in-kind contracts picked up from database are categorized by the criteria of its nature and validity. In this part, the conclusion can be draw that the practice of pay-a-debt-in-kind contracts is in controversy.The second part is to compare and interpret the related law, administrative regulations, departmental rules, and judicial interpretations. Through the analyses, especially the deep research on the article 24 of judicial interpretation, we can get the conclusion that rules of pay-a-debt-in-kind contracts are necessary to be enhanced.In the third part, on the basis of legislations, practices and the textbooks home and abroad, this dissertation is to define and categorize the pay-a-debt-in-kind contracts.The fourth part is to clear the relationship between pay-a-debt-in-kind contracts and folk debit and credit contract. In this part, we can found that the judicial interpretation holds the idea that a sales contract is the guarantee of a borrow-and-loan contract. This is the limitation the judicial interpretation for the reason that in the practice, the debt of the pay-a-debt-in-kind including but not limited to land transfer tax, agency fee, house-removing payment, the nature and validity of these contracts are not clear due to this judicial interpretation. This dissertation holds the opinion that the nature and the validity of the pay-a-debt-in-kind contracts depends, it probably be guarantee, or datio in solutum, new debt repayment, or other else.The fifth part is to compare the pay-a-debt-in-kind contracts with related contracts. In this part, to analyze the definition, constitutive requirement, validity and the stipulations of legislations on datio in solutum, new debt repayment, alienation mortgage, it helps us to understand to the nature and validity of pay-a-debt-in-kind contracts.The sixth part is to analyze the nature of the pay-a-debt-in-kind contracts. On the base of discussion above, we can conclude that the pay-a-debt-in-kind contracts may belong to datio in solutum, or new debt repayment, or alienation mortgage, in what circumstance it belong to one of the three, it depends. So the validity of the pay-a-debt-in-kind contracts should be distinguished and decided by the general provisions of contract law.