Empirical Research On The Paying A Debt By A Thing

The act of paying a debt by a thing has existed since ancient times and exists in a large number of folk transactions.In recent years,with the development of social economy,especially the fluctuation of the real estate industry,the number of cases of disputes over the paying a debt by a thing has soared,and the behavior pattern has also changed to some extent.Whether in practice or in theory,the legal application of the paying a debt by a thing has never stopped discussion.Article 24 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Non-governmental Lending Cases promulgated in 2015 attempts to point out the direction for the court to try such cases and terminate disputes,but it is not optimistic from the perspective of the application of judicial practice.This paper starts with 165 cases of the paying a debt by a thing disputes tried by the Supreme People's Court and Local Higher People's Courts,analyzes the problems existing in the process of handling such cases,and puts forward the corresponding law application standardization analysis,in order to provide useful reference for solving such cases more accurately.In addition to the introduction,this paper is divided into four parts.In the first part,an overview of the application of the paying a debt by a thing.Through the empirical analysis of the sample cases,it is concluded that the court in the process of hearing the paying a debt by a thing disputes in the existing difficulties.After searching and analyzing the ‘PKULAW' database,the author selected 165 cases of the paying a debt by a thing tried by the Supreme People's Court and other Higher People's Courts as the sample cases.At the macro level,the trial pattern of such cases in judicial practice shows three characteristics:“the case base is large and increases year by year”,“there is a big dispute over the nature identification of the paying a debt by a thing” and “there is a big difference in the effectiveness pattern of the paying a debt by a thing”.At the same time,the author further analyzes the practical difficulties of the court in trying such cases,which mainly include:Firstly,the dislocation between the simple legal concept and the modern legal system;Secondly,the cases cover a wide range of areas of life.Thirdly,the legal rules involved in such cases are of certain complexity.The second part,an analysis of the existing interpretation paths of the paying a debt by a thing.Practical departments issued clear and detailed rules against this kind of cases,such as Jiangsu province Higher People's court summary about the cases of the contract of paying a debt by a thing in creditor's right and debt trial,Beijing municipal Higher People's Court on several problems of building business contract dispute cases summary and“the judicial interpretation of non-governmental lending”;The theoretical interpretation methods typically include“non-typical guarantee theory”,“false collusion theory”,“datio in solutum appointment theory”,“contract linkage theory”,“act of disposition theory”,“set-off + option to perform theory”and“conditional sale contract theory”.After the analysis of the above interpretation methods,the author found that although the above interpretation methods have some applicable value,they have not solved the fundamental problems in the face of the complex barter transaction mode.This paper argues that the paying a debt by a thing should be typed and included in the rules of pure debt law to be discussed,mainly through the changes of debt,datio in solutum and the new debt repayment system to explain.Firstly,the novation of debt and the changes of debt belong to the change of the content of debt.The biggest difference between the them is that the novation of debt is the system of establishing new debt and eliminating old debt.Secondly,under the changes of debt system,the transaction purpose of the parties can be reflected in the system of guarantee,datio in solutum and new debt repayment through the interpretation of specific agreement clauses.Finally,the datio in solutum system can be understood as a result of the new debt repayment system.The third part,the deconstruction of transaction mode of the paying a debt by a thing.In order to deal with the dispute of the paying a debt by a thing in judicial practice,it is necessary to deal with the transaction mode of the paying a debt by a thing in a more detailed way.The author deconstructs the transaction mode in 165 sample cases according to the three levels of the standard of "the nature of the basic contract","the number of contracts signed" and "the time to sign the contract".In addition,it abstracts the nine basic structures of the mode of the paying a debt by a thing in judicial practice based on the three standards,which provides necessary preliminary preparation for solving the problems in this kind of cases more accurately and scientifically.The fourth part,standardization analysis on the application of the paying a debt by a thing.This paper mainly solves five problems that need to be answered in the process of handling the dispute cases of the paying a debt by a thing.Firstly,because the parties to the contract usually do not go through the procedures of real right change such as registration for the subject matter of the paying a debt by a thing,and such contracts do not meet the three characteristics of subordination,complementarity and practical realization of creditor's rights required by the guarantee,the contract does not have the guarantee function.Secondly,since the paying a debt by a thing is not a guarantee,and will not harm the interests of the parties,so it is not applicable to the prohibition of liquid provisions.Thirdly,since the paying a debt by a thing is a non-liquid-in-kind commitment contract which is not applicable to the provisions on prohibition of liquid quality and conforms to the economic ethics of “Pareto Improvement”,the paying a debt by a thing should be valid in principle.Fourthly,when judging the nature of the paying a debt by a thing,the judge should first determine whether it belongs to the novation of debt.If not,it should be included into the changes system of debt for discussion.Fifthly,under the circumstance that the paying a debt by a thing constitutes new debt repayment,new debt and old debt exist at the same time.If the debtor fails to actually perform the debt within the time limit,the creditor can only claim that the debtor performs the new debt first.