The Research On Law Application Of Paying A Debt By A Thing

The contract of paying the debt by a thing 1is a big legal concept,it generally considered to include datio in solutum, liquid mortgage, change of the debt,eliminating the debt by a new debt and transferring guarantee,but in our current legal system,which are all nameless contract, even the liquid mortgage and eliminating the debt by a new debt and transferring guarantee was prohibited by law.because of the practicality,datio in solutum has a big attack for the principle of autonomy means,I think it should be excluded by the theory of paying a debt by a thing,and the change of the debt not only protect the principle of autonomy means,but also maintain the principle of good faith,it should be the only types of paying the debt by a thing,and it also should refer the provision of contract of sale.This article was based on the plight of paying the debt by a thing,by the method of case analysis and comparative analysis, concentrate on the contract of paying the debt by a thing that between citizen,it will not involve the type that include public power.This thesis is divided into four parts:The first part introduce the theoretical basis of paying the debt by a thing.As the premise of how to choose the law,it was important to make a choice between the theory of contract and disposition,based on the case and contract law,paying the debt by a thing should be a contract through the analysis.The second part established the nature of the contract of paying the debt by a thing.In recent years,the real reason of the confusion is that we can not definite a only type which can describe the contract of paying the debt accurately,if we treat it as a consensual contract,it should be change of the debt,or in the opposite,it was a practical contract of datio in solutum,but in the development of the society,the practical contract is decreasing, so we should choose the theory of consensual contract.The third part discuss the specific applicable law of the contract of paying the debt by a thing.If we treat it as a consensual contract,we should limit the thing that used for paying for the debt,we should also confirm the rule of law for the special situation,at last we should tease the generic rule.The fourth part is the Suggestions of the application of law.It has bigger controversy,although there are some judgement which was made by Supreme People's Court of the People's Republic of China,but it is not law or judicial interpretation,the author puts forward some suggestions that have operation ability.