Research On The Legal Issues Of The Datio In Solutum

Restitution of substitutes is an ancient legal system of the civil law system.Since the restitution of substitutes is a "mixture of changes in debts,sales contracts,and fulfillment," there are many problems both in theory and practice.Our country's law does not clearly stipulate a system for the restitution of substitutes.However,in real life,there are a large number of behaviors of “restitution of substitutes” that rely on the debt of material(houses).The preface part leads to a system for the restitution of substitutes through specific cases.The author believes that because there is no legal provision,China's system for the restitution of substitutes is established by the Supreme People's Court.However,the case made by the Supreme People's Court is different,some cases hold that the Restitution contract of substitutes is "substantive contract",while some other cases think it is "consensual contract".The difference leads its importance to discusses the legal system of Datio in Solutum.The first part discusses and proves the nature of the system for the restitution of substitutes,mainly the arguing "the contract of the intangible object," the "debt change theory," and the "liquidity contract theory." Regarding the "substantive contractual theory",combining the content of the Roman law itself and the realization of "creditors' satisfaction," the author does not agree with the "real act" point of view.For the "debt change theory" and the "liquidity contract theory," the author accepts Professor Xiao Jun's point of view,that is,the purchase "repayment contract theory."The second part argues and discusses the constitutional requirements of restitution of substitutes.Since the author does not agree with “real”,he believes that there are three elements for restitution of substitutes: the existence of the relationship between the original creditor's rights and debts,the agreement between the parties regarding the liquidation of debts,and the fact that payment and the original payment must be made differently.Among them,in the aspect of “presence of original creditor's rights and debts”,the main arguments are “their causes(the original claims and liabilities are legal and effective),the types of original credits and debts(having no effect on new claims and liabilities),and the original claims and debts are the same Three aspects of the nature(otherwise it is the renewal of debts);in the aspect of “the agreement between the parties on the satisfaction of the agent”,the scope of the definition of the “party” is mainly demonstrated;in the aspect of “different payment must be different from the original payment”.It is mainly argued that the difference between his payment and the original payment is his own right to pay off the money,and the goal of his payment is to replace the original payment.Also,this part discusses the agreement between the parties.In addition,it also argues that the different views on "shall the creditor receive other payments on behalf of him" mean that the liquidator should not be regarded as an intangible thing in terms of protecting the interests of the creditor or facilitating the transaction.The third part deals with the problems in the judicial review of the practice of restitution of substitutes.It mainly includes the issue of the effectiveness of the agreement for the restitution of substitutes,the liability for guaranteeing the restitution of the substitute,the problem of the original payment and the unequal value of the payment,and the issue of housing(material)top debt.Regarding the “effectiveness of the agreement for the restitution of substitutes”,the “restitution of substitution compensation” agreement should be treated differently;the contractual agreement for the restitution of substitutes of compensation after the expiry of the debt fulfillment period should be handled in accordance with the principle of autonomy of will.There are two ways to co-exist with respect to the liability for defamation.The problem of unequal value for the original payment and other kinds of payment should be fully respected by the party's autonomy of the meaning.As for the top debt issue with housing(materials),the author believes that the problem should be handled with the promise of the housing(material)top debt issue.