The Judicial Identification Research On The Coexistence Of Debt Assumption

The coexistence of debt undertaking is a system that a third person join the original debtor-creditor relationship as a debtor who shares the liability with the original debtor.However,this system has thus far yet found its place in China's legislative domain.Besides,academic researches on this system,especially its difference with other analogous systems have also been in preliminary stage in our country.Although the practical circle has conducted arduous explorations and experiments in the process of its judicial application,these experiments do have their deficiencies,for example,they are mainly concerned about individual cases and strongly subjective and short of systematic framework.In daily routine,when confronted with the tough situation of large volume in standing stock and increment of cases regarding to debt undertaking,the practical circle would find that the coexistence of debt undertaking cannot function properly in application system.The author of this thesis analyzes the status quo,problems and reasons of the application of conventional debt undertaking coexistence in China through utilizing methodology of study on similar cases.And by means of literature review,this thesis will also reconstruct the theoretical system of coexistence of debt undertaking to find out some common distinguish standards in theory and practice.And then,the author will reveal the difficulties in practice and put forward countermeasures,thus attempting to making some contributions to the research of application of debt coexistence.The first part of this thesis will search and classify the cases pertaining to coexistence of debt undertaking.In the dimension of quantity,by presenting dates,the author reveals the tough reality of the large volume in standing stock and increment of cases regarding to debt undertaking;in the dimension of quality,by studying individual cases,the thesis also reaches conclusions that,in the actual application process,the connotation and demarcation of debt coexistence are ambiguous,and that applications are chaotic,and that the rates of appeal and overrule stay in high level,and that lawsuits are difficult to be settled.In the second part,through systematically analyzing the rationales of coexistence of debt undertaking and similar systems,the author proposes that,in superficial level,debt coexistence means that the third person share the liability;but in underlying level,it not only has bonding property of warranty system,but conforms to the constitutive requirements of liability exemption.Therefore,only from the perspectives of definition,quality and constitutive requirement,it is hard to distinguish it from other similar systems.In daily routine,the practical circle spends their energy mainly on individual cases and summarizes from the aspects of speculation of potential implications and quantity of contractual subjects.However,it is apparent that individual has strong pertinence and,to some extent,are not systematic and universal.In the third part,based on theory carding and cases analysis,the author concludes that,in practice,the debt coexistence has some operational difficulties,such as the ambiguity of contractual parties' expressions,reciprocal transformation among several systems,violent conflict of value judgment in individual cases,etc.The author maintains that if contractual parties can not express clearly in individual cases so that it is hard to differentiate the coexistence of debt undertaking and systems of liability performed by the third party,the Article 65 of Contract Law should be interpreted restrictively.Liability for debts and warranty system required clear expression of contractual parties' idea.The coexistence of debt undertaking,as an “overall” system of the two former systems,should be applied prudently.