Analysis On The Legal System Of Debt Accession

The system of debt accession is not clearly stipulated in the current law of our country,and the academic community has rarely heard about the system of debt accession,but the judicial practice community has faced a large number of cases of debt accession.Due to the lack of a clear legal basis,and the fact that it is very easy to confuse the debt accession with the guarantee system,the courts have insufficient judgment arguments in cases concerning debt accession,and even have different judgments in similar cases.It is not conducive to the establishment of judicial authority.This article tries to analyze and discuss the typical case of the dispute between Yunnan Wanglida Mining Co.Ltd.,Changji Yi'an Coal Mine and Li Junsheng enterprise loan,in order to help the judicial practice to hear similar cases about debt accession.This article is divided into six parts,in addition to the introduction and conclusion,but also includes the four parts of the main text.The first part is the question raised;The second part is the debate between debt accession and joint and several guarantee;The third part is the responsibility of debt accession;The fourth part is the legislative proposal on the debt accession system.The first part introduces the case,the judgment of the court of first instance and second instance and the focus of the dispute between Yunnan Wanglida Mining Co.Ltd.and Changji Yi'an Coal Mine and Li Junsheng.The controversial focus of the case includes two parts,namely,the legal nature of Li Junsheng's promise in the case and the responsibility of Li Junsheng.The second part combs and analyzes the connotation,legal characteristics and constituent elements of debt accession,as well as the distinction between joint and several guarantees,and concludes that the legal nature of Li Junsheng's commitment is debt accession.The third part analyzes the responsibility of debt accession in detail.Firstly,the scope of Li Junsheng's debt as a debtor is analyzed,that is,as a new debtor,he assumes a debt that is identical to the original debtor,and then the scope of his debt is naturally included in addition to the original debt.Debt,Of course,the exclusive original debtor's subordinate debt is not within this scope,and it can not be discussed in general.It needs to be analyzed separately from the debt generation before or after the establishment of debt.If the debt is generated before the debt is added,it already has a certain degree of independence.The debt joiner does not bear the debt unless the debt joiner explicitly undertakes to bear the debt together;If the obligation arises after the addition of the debt,the joiner shall,in principle,assume the dependent obligation together,unless the dependent obligation is exclusive to the original debtor.Secondly,by comparing the cause,subjective purpose,absolute effects and exercise of the right of claim of joint and several liabilities and unreal joint and several liabilities,we analyze the form of liability of the debt joiner and the original debtor,that is,unless the joiner has a special agreement with the original debtor.Otherwise,the forms of responsibility for the two are not truly joint and several liabilities.In this case,Li Junsheng and Changji Yi'an Coal Mine are jointly and severally liable for the loan involved in the case.Therefore,their free will should be respected.The forms of responsibility borne by the two are joint and several liabilities.Thirdly,as a debt joiner,the scope of defense rights enjoyed by Li Junsheng includes: the right to defense based on the creditor's debt relationship between the creditor and the original debtor,the right to defense based on the basic legal relationship of debt participation,the right to defense based on the defects of the original debt itself,and the right of defense arising from debt accession agreement.Finally,there are four views on whether or not Li Junsheng has the right to recover after assuming the debt: gift,negotiorum gestio,unjust enrichment,and guarantee.The author believes that the right of recovery of the debt joiiner can be analyzed according to the relevant rules of the contract law.When the original debtor is a party to the debt and the agreement stipulates the exercise of the right of recovery or the consideration that can be obtained,then respect the party's autonomy of will.The party to the debt shall exercise the right of recovery or claim for consideration in accordance with the contents of the contract;If the right of recovery is not stipulated in the agreement,and there is no consideration in the agreement of the value that is desirable after the obligor assumes the obligation,the obligor may recover from the original obligor on the basis of unjust enrichment;When the debtor accepts a promise unilaterally,the debtor may recover from the original debtor on the basis of negotiorum gestio.Therefore,after Li Junsheng assumes the debt,there is the right to recover from Changji Yi'an Coal Mine.The fourth part analyzes the necessity of the system of debt accession legislation and lead to corresponding legislative proposals.The first part analyzes the dispute and understanding of Article 84 of the Contract Law of China.The author believes that this Article does not contain the provisions on debt accession,but rather the legal provisions on the debt assumption of exemption;Then the author analyzes the limitations of the "Minutes of Discussion(1)".The author believes that the minutes of the meeting do not have the status of legal sources and can not be used as a basis for the referee's reference.They can only be quoted in the reasoning part of the judgment documents in the form of jurisprudence.And the scope of application is also limited to Jiangsu Province;Moreover,even if the actual judicial practice uses the legal theory of debt accession to analyze and judge the case of debt accession disputes,it can not solve the chaotic state of debt accession recognition in the current judicial practice.Therefore,the current situation of judicial practice also urgently needs to be solved by legislation.In the second part,the author puts forward some legislative suggestions for the establishment and improvement of the specific institutional rules.This includes determining the connotation and manifestation of debt accession,the elements,the form of liability,the determination of relative irrelevance,and the scope of the respective rights enjoyed by the three parties in order to balance the interests of creditors,debtors,and debt participants.