Research On The Problems Of Agreement Loan System

Compared with the legal system under the legal system of Germany and Taiwan,there are no specific rules in the current system of law in China.However,in practice,there is one such situation that a sale contract,and the parties have reached a new agreement,that is,the price of the sale of the contract as a loan to be agreed,the original contract debtor issued an article,after the expiration of a certain period of time to return the loan and pay interest.According to China's "Contract Law" Article 210: " the loan contract between persons,since the lender to provide loans to take effect." Therefore,in the borrowing between natural persons in China,the lender transfers the loan to the entry into force,the contract is effective to meet the requirements of the material nature.when does the borrowing do not conform to the material requirements,then should it be determined that the agreed loan is invalid? This paper argues that,neither the German law nor the legal of Taiwan,such as the law of comparative analysis,or from the purpose of 210 legal norms,should not be determined to be invalid loan.To analyze the effectiveness of agreed loans,we should first identify the relationship between borrowing and basic contract.In German law,in principle,three structures can be considered.(1)debt change structure.(After the reform of the debt law)during this period that the establishment of the loan contract is based on the establishment of the first paragraph of Article 311 of the contract changes,the current debt base(based on the parties expressed the intention or a legal request)Replacement,but the original debt continues to exist,only subordinate to the right to borrow.(2)debt renewal structure.Both parties could then change to a new borrowing debt relationship to replace the original debt(debt update).The original debt is invalid,the right of defense relative to the original debt and the guarantee no longer exists.The nature of the debt change is to set up a new debt relationship to replace the original debt status,the original debt no longer exists.(3)No basis of debt renewal(debt commitments and debt recognition)structures.Absent debt change: through abstract debt recognition or debt promise.Provided that the elements of the provisions set out in paragraph 780,781,in particular the formal requirements,must be met.The conversion of debt relations is,in principle,based on the autonomy of the parties.When to agree to borrow for the change,Renewal or abstract debt recognition,in essence,is the interpretation of legal issues.There are significant differences in the nature,structure,and legal effects of change and renewal.When the parties do not explicitly state the nature of the conversion in the text,it shall be determined that the change or renewal should be made by interpretation.In the interpretation,man can determine the identity of the point of view from the analysis.And "identity" itself is a vague standard of determination,it should be specific,und can be broken down into economic goals,essential differences and so on.Since the effectiveness of the change is weaker than the renewal,from the point of view of respect for the autonomy of the parties,it is explained that the change is better than the update when the identity is doubtful.The previous law of Germany and the laws of Taiwan,in the provisions of the consumption of goods for the premise of the property,while the validity of the agreed loan as exception.However,In China,the law does not involve the question of the effectiveness of agreed loan,and therefore belongs to the legal loophole,and the legal loophole should be made up by legal interpretation.In the law,we can explain the validity of the intention to provide money by fitting,offsetting,explaining the "transfer",explaining the "punishment",the purpose of limiting,analogy,and so on,so as to complete the validity of the Argumentation and to meet the judicial practice of such issues to deal with the requirements.At the same time,due to the specific nature of the structure of the contract itself,there are some special problems.In judicial practice,the purpose of a large number of consensual borrowing is to circumvent the mandatory rules of the law,in this case need to apply the rules of legal circumvention.The linkages and distinctions between reconciliation of agreed loan and money debt are also an important issue in practice.For the original debt has been over litigation limitation,Under the change condition,should be based on the debtor subjective whether it is known,divided into two different situations to be discussed.In the case of renewal and abstract debt relations,the original debt has been eliminated,the establishment of new debt,litigation limitation should be recalculated.Joint debt and agreed to borrow,agreed to borrow less effective than those who did not participate in the joint borrower or joint debtor.