Research On Paying A Debt In Kind

In our legal system,paying a debt in kind system has not yet been clearly stipulated.However,in the case of judicial practice in advance,a large number of cases of paying a debt in kind appear as the phenomena of "different judgments in the same case" and "different judgments in the same kind of cases" in judicial adjudication,which not only increases the cost of adjudication,but undermines the authority of judicial.Therefore,it is really necessary to regulate paying a debt in kind.And considering the background of the civil code being compiled in our country,it is also feasible to regulate paying a debt in kind by legislation.Therefore,in order to unify the judicial judgment and give a full play to the value of paying a debt in kind in civil and commercial activities,this paper considers that the system of paying a debt in kind can be stipulated in the civil code of our country,and it should contain at least the concepts,constituent elements,legal effects and other regulations.So starting with the concept of paying a debt in kind,this paper analyses the differences in the trial practice,so as to give some suggestions on the construction of the system of paying a debt in kind at the legislative level.This paper holds that the concept of paying a debt in kind is different from that of datio in solutum or consensual contract,and it is a special method of debt elimination that is based on valid legal documents or agreements between the parties to replace the original payment with other kinds of payment.In judicial practice,there are some problems,such as paying a debt in kind's different validity and nature,unclear relationship with original debt and so on.For the construction of the system of paying a debt in kind,first of all,it should be regarded as an alternative way to eliminate the original debt.In terms of identification,it should be distinguished between the contract of paying a debt in kind and its performance.At the same time,it need to be identified that the actual performance of other kinds of payments is not the establishment requirements of the paying a debt in kind agreement,but the requirements of the effect of paying a debt inkind to eliminating the original debt.Then the composition of paying a debt in kind should be clear as follows:(1)the existence of the basic original debt;(2)a valid legal document or agreement between the parties;(3)other kinds of payment replace the original payment and comply with legal provisions;(4)the actual performance of other payment.Furthermore,the full performance of paying a debt in kind can produce the effect of eliminating the original debt.If the performance of other kinds of payment is defective,the debtor's performance of the corresponding liability for guaranteeing defects depends on whether the original debt is a compensatory contract.This paper attempt to provide some ideas for the construction of the system of paying a debt in kind in the Civil Code.