Study On The Debt Settlement System Of Debt

The debt settlement system is a way for creditors and debtors to resolve debt disputes when the debtor cannot pay off all debts at one time.The system can be traced back to the Roman law period,and the inheritance and development of civil law countries such as Germany,France and Japan have also produced certain differences.In particular,whether the designation of the debtor designation mode or the debtor-creditor designation mode is adopted,the former is adopted in this paper because of the simplicity of the debtor's designation model and the scientific nature of legislation.China has stipulated the provisions of Articles 20 and 21 of the Judicial Interpretation of Contract Law II.The introduction of this interpretation has made up for the legislative loopholes in this aspect of China and improved the legislative structure of our country,but in many respects It has a shortpart.Mainly reflected in: the lack of provisions for the specified offset,there is no distinction between the maturity of the debts due and the debts due,the type of interest offset is not clear,the order of the penalty is not specified,in the main debt The order of offsets with fees and interest is not clear.The settlement system can determine the settlement order of creditor rights fairly,balance and safeguard the interests of both creditors and debtors.At the same time,when it involves the rights of third parties,it can also achieve the protection of third party rights.At the time of the formulation and revision of the drafts of the Civil Code(draft),Articles 350 and 351 of the draft are compared with the 20 and 21 clauses on the settlement of debts in the Judicial Interpretation II of the Contract Law.The regulations have changed and new content has been added,the main change being the increase in the debtor's designated offset.Secondly,it also changed the standard for determining the offset order by the amount of guarantee in the Judicial Interpretation II of Contract Law,focusing on the comprehensive types of guarantee types and considering the credit of the guarantor.Finally,there are changes to the position and wording of the system for the settlement of the offset system.However,the draft still does not solve the problem of the maturity of debts in the judicial interpretation,the distinction between the types of interest and the offset of liquidated damages.In order to solve the above related problems,the paper has carried out detailed analysis from theory to practice on these issues.First,the order of offsetting the debts that have expired and the debts that are not due.Debt that has expired should be paid off first.When the debts are due or have not expired,the debts with the least guarantee or the least guarantee are paid off first.Secondly,regarding the types of interest offsets,clear interest on overdue interest and excess of the statutory interest rate limit will be settled.Third,if the parties have agreed on liquidated damages,it can be determined that the overdue payment liquidated damages with overdue interest characteristics are covered in the judicial interpretation,but after the main debts are settled,the general liquidated damages can be offset.Finally,in the case where there are fees and interest on the main debt,it is recommended to add “in accordance with the former article to offset the debts after the article 350 of the Civil Code Contracts(draft),the same.If the debtor does not specify in the above order The creditor has the right to refuse to receive the payment."...