The Application Of “sale Can Not Devastating Lease” Rule In The Contract Of Settling Debt By Lease

This article discusses whether the “sales can not devastating lease ” rule can be applied in the contract of settling debt by lease,problems that may arise in its application and the solutions.This paper adopts various methods to research the topic,concludes analyzing and summarizing the basic composition of the legal acts arising from the practice of settling debt by lease through case analysis,adopts the methods of legal hermeneutics and comparative study on the research of legislative purpose and scope of application of the rule,at last studies the methods to solve the problems in reality on the basis of the current law.By analyzing judicial judgments and academic opinions on this issue,it is obvious that there are different opinions among different levels and regions of judicial organs on the application of “sales can not devastating lease ” rule in the contract of settling debt by lease.There is no unified view on the nature of settling debt by lease contracts and the scope of application of the " sales can not devastating lease " rule,meanwhile seldom scholars have explored this issue so that the discussion is still in a preliminary state.The forward research shows the significance of this study and the focus of following discussion.Then,by analyzing the parties' agreements in different judicial cases,we can summarize the constitution of the contract or legal relationship of settling debt by lease,and tries to interpret it with the existing theory.The relationships can be classified into three types: renewal of debt,new debt liquidation and pre-contract of offset: if the meaning between the parties is unclear,we shall interpret it as new debt liquidation;if the parties agree that the rent paid by installments is offset by the original debt,it is a lease contract and the set-off agreement for its rent;only if the parties explicitly express the intention of changing into a new debt and eliminating the old one,it constitutes the change of the debt.On the basis of typification and rationalization,this paper discusses whether the contract of settling debt by lease can be included in the region of lease contract.It is found that when the old debt is an infringement damage compensation or a contract without compensation,meanwhile the new contract constitutes the renewal of the debt or new debt liquidation,the newly established legal relationship constitutes a legal relationship without compensation,and in other cases it belongs to the lease legal relationship.The question then turns into whether the borrowing relationship can analogically apply the " sales can not devastating lease " rule.Starting from the origin and development of the " sales can not devastating lease" rule,the basic connotation of the " sales can not devastating lease " rule is derived.Based on that,the paper keeps analyzing the legal provisions in our country and compare with the other countries'.It is clear that we have a broader scope of situations that do not break lease in our stipulation,and the existing provisions have significant differences in the expression of applicable leases and legal effects comparing with other legislation example.We can see from that the legislative purpose of our country is to provide particular protection for the lessee,and then to infer the scope of application and analogically application of the " sales can not devastating lease" rule.Finally,based on the analysis of the legal provisions of our country,there may be two legal effects models of the " sales can not devastating lease" rule in our country,so we analyzes difference legal effects of applying the "sales can not devastating lease" rule to contract of settling debt by lease and the ordinary lease contract.At last,this paper specifically analyses the balance of interests between the potential transferee/mortgagee and the parties in the contract of settling debt by lease without any compensation,then finds out the problems that may arise in the transaction of the parties in real life in accordance to judicial cases and news reports,and puts forward feasible solutions to these problems.