A Study On The Legal Issues Of The Agreement Of The Paying The Debt By A Thing

Paying the debt by a thing,which is a method of payment.From the current legal system of our country,there is no clear provision for it.But,because this kind of repayment way is simple,quick,and cheap,which is used widely in our life.According to the classification of judicial proceedings,it can be divided into the payment before the litigation,the payment during the litigation and the payment during the execution.The research object of this paper is the agreement of paying the debt by a thing before the litigation.Because this method comes from the practice,in order to fully grasp the related issues,this thesis adopts the empirical study method.Firstly,choosing the relevant cases in recent 5 years through the "Wolters Kluwer" database,and 118 typical cases were selected;Then,summarizing and analyzing the central issues of these cases;Finally,summing up the main problems in the judicial status and putting forward some suggestions for improvement.The thesis is developed by combining case analysis.Apart from the introduction and conclusion,this thesis has three parts:The first part summarizes the research object of this paper,that is,the definition of the agreement.This part introduces the concept,characteristics and establishment requirements of the agreement of paying the debt by a thing.Actually,this agreement is an reached by a debtor and a creditor to settle the original debt by transferring a specific property or other property rights.In practice,the establishment of this kind agreement generally requires the following elements: firstly,there should be a legitimate and effective original debtor-creditor relationship between the creditor and the debtor,which is the basis for the agreement;secondly,the parties concerned must reach an agreement on the debt settlement;finally,the payment of the debt should be different from the original payment.At the same time,this agreement is an in-nominate contract,combined with the theory and practice of contract,it should be identified as a consensual contract.The second part discusses the specific problems in the juridical practice.Through analyzing the focus of dispute in these cases and comparing the judgment results,the following points are mainly concluded.In the first place,the nature of the agreement is confused.At present,there are mainly five kinds of different identification: datio in solutum,fluidity contract,alienation guarantee,new debt repayment and changes of debt.The next,the validity of the agreement is undefined.And the main dispute on validity is the agreement about an undue debt.Then,the dispute about the change of real right and the value of the thing.At last,when the agreement is established and becomes effective,whether the creditor can choose to request the debtor to fulfill the agreement or repay the original debt.The third part puts forward some suggestions to regulate the agreement of paying the debt by a thing.Firstly,the nature and effectiveness of the agreement should be clarified.According to the purpose of the parties entering,the agreement can be divided into two types: the secured type and the compensated type.The secured type of agreement is generally concluded before the due date,the intention of which is clearly identified as fluidity contract or alienation guarantee.The repayment type of agreement is generally concluded after the due date,its nature is defined as new debt repayment or debt changes,which is valid.Secondly,to settle the dispute over the value determination of the thing,a reasonable evaluation mechanism and a unified translation standard should be established.Finally,in order to ensure the smooth realization of creditor's rights and balance the interests between the parties,creditors should be given limited options.