Research On The Legal Nature Of Contracts Of Pay-a-debt-in-kind

The pay-a-debt-in-kind cases have been increasing in recent years,because they belong to unnamed contracts,and there are many disputes about the legal nature of their claims,especially in civil lending contracts and sales contracts(including commercial housing contracts).There are two common situations in practice.One is the pay-a-debt-in-kind contract signed by the debtor before the debt is repaid or the original debt is established,and the other is the debtor's contract after the debt is expired.In the case of pay-a-debt-in-kind contract contracts,the main feature of the contract is to replace the original payment with other one to ensure the realization of the interests of the creditors.However,since the mainland's laws do not currently provide clear provisions on the property debt and its legal nature,it also makes the judicial referee's point of view not be uniform.In the theoretical field,the research on the pay-a-debt-in-kind has not yet reached the stage of maturity,and various academic views have emerged.There is no consensus on the study of the legal nature.This is also an important factor that affects the unification of judicial decisions.Judging from the typical cases published by the Supreme People's Court in recent years,the theoretical theory of the object-for-debt theory has gradually been absorbed into the judicial opinion,and as an important theoretical basis to support the referee's results,it can also be seen that the academic explanation has affected judicial practice more deeply.Since academic explanation is a kind of powerless interpretation,whether the legal opinion can be directly invoked in the judicial adjudication process as the legal basis of the case referee,as well as the cited theoretical views of the dispute will cause new problems or not,it also needs to pay and study.On the basis of summarizing the representative cases of pay-a-debt-in-kind contracts' disputes in recent years,according to the latest theoretical theory and judicial opinions,the legal nature of pay-a-debt-in-kind contract in practice should include datio in solutum,new debt repayment,change in debt,liquidity contract,alienation guarantee and sales contract.It is not difficult to learn from the cases selected in this article that the Supreme People's Court has made significant changes in the judgment of the legal nature of the property-for-debt agreement in recent years.From the focus on the effectiveness of the pay-a-debt-in-kind contract itself,it gradually began to pay attention to the process of parties' signing the agreements.The true meaning of the parties' expression,and the use of the meaning as an important basis for determining the legal nature of the pay-a-debt-in-kind contract and the judgment of the case,reflects the principle that the Supreme Court gradually respects the parties' autonomy.Therefore,this paper studies the legal nature of the time node generated by the pay-a-debt-in-kind,and attempts to propose a reasonable identification scheme,that is,the pay-a-debt-in-kind contract before the debt period is based on the party's meaning and behavioral purpose,and its nature can be liquid.Pay-a-debt-in-kind contract in practice should include datio in solutum,new debt repayment,change in debt,liquidity contract,alienation guarantee and sales contract after the debt period are characterized as the settlement of the substitute,the settlement of the new debt and the change of the debt according to whether it is actually delivered and whether the parties have reached a clear relationship with the old debt.Regarding the prevention and control of false litigation,the idea of combining criminals and the combination of management and control is proposed.