Research On The Settlement Of Substitutes

The emergence of the system of restitution of substitutes is the inevitable result of the in-depth development of the socialist market economy,and the case of restitution of surrogates has gradually increased in recent years.However,due to the lack of corresponding legal basis in China's current legal norms,the civil law academic circles are also controversial about the nature of the settlement of substitutes.Through the case of non-litigation and the search of Peking University's magic weapon,the trial results of the case concerning the settlement of the surrogate in judicial practice are not the same,and the phenomenon of different judgments in the same case often occurs.There are only a handful of research literatures and periodicals on the settlement of related materials in China Knowledge Network.It can be said that the case of surrender settlement lacks both legal support and theoretical research.Therefore,from the theoretical and empirical perspectives,it is necessary to carry out research on the settlement of substitutes in combination with the specific cases in China.Under this circumstance,by taking the form of case analysis and using the combination of theoretical research and empirical research,a detailed study on the settlement of the survivor is based on the “Jun-Fang and Shanxi Jia Hetai Real Estate Development Company commercial housing sales contract dispute case”.A feasible idea.The courts at all levels have different opinions when dealing with the Zhu Junfang case.The reason for this situation is that the nature and composition of the surrogacy agreement are not accurate enough.Therefore,the meaning,nature and constituent elements of the settlement of the substitute are systematic.Analysis is of great significance to the theoretical basis of clearing the settlement of substitutes.Although China has not yet established a system for the settlement of substitutes,the settlement of substitutes has been incorporated into the legal system of many countries or regions.Representatives are the relevant legislations of Germany,Japan and Taiwan.Both Germany and Taiwan indicate The settlement of the substitute is based on the payment of the original payment,and its effect is to eliminate the relationship of the debt;and the description of the settlement of the substitute in the Japanese Civil Code has added the basis of the settlement of the substitute in addition to the German Civil Code.And the explanation of the settlement effect.Thus,by comparing the legislative examples and the viewpoints of the various theories,it can be concluded that the settlement of the substitute is a phenomenon in which the creditor receives the kind of payment to replace the original payment and the contractual relationship is eliminated.For the identification of the nature of the settlement of the substitute,by demonstrating the divergence of the academic point of view,the settlement of the substitute is a contract rather than a settlement,and it is a promise contract rather than a physical contract.According to the viewpoint of promise,there are three components of the settlement of the agent: one is that there is an existing debt and debt between the parties,the other is that the parties agree to pay off the property,and the third is that the payment is different from the originalpayment.There are many problems in the practice of surrender settlement.On the issue of the validity of the agreement when the agreement was not fulfilled,some of the trial opinions considered that it was not actually fulfilled and accepted,and the substitute settlement agreement was not established.There were also trial opinions that the failure to perform did not affect the effectiveness of the settlement agreement.Although it was not actually implemented,the agreement was still valid.On the issue of guarantee liability,when the subject matter of delivery as an alternative payment occurs,the rules on how the rights are remedy are not specific;how to apply the relevant provisions of the Contract Law on the issue of the original payment and the value of the alternative payment The rules of unfairness,fraud,and the danger of accommodating people are punished to ensure that the rules of default in the settlement of substitutes are still to be perfected.Therefore,taking the real problem of surviving the property as the starting point,according to the construction of our civil law system and the status of real legislation,the basic idea of perfecting the system of surrender settlement is put forward,which is of great significance for further establishing and perfecting the construction of China's substitute system.