On Datio In Solutum

At present,Chinese law doesn’t provide the system of datio in solutum.Although there is no system of datio in solutum in law,there are a large number of acts of datio in solutum in social life.In the academic circle,the nature of datio in solutum has been controversial.In judicial practice,the court adopts different academic viewpoints in the trial,the "scale" of c ase judgment is not consistent,and it involves the effectiveness of the contract.These basic and fundamental viewpoints have differences,which lead to different judgments in the same case,and affect the stability of the judicial judgment and the certai nty of the judgment result.In the civil laws of Germany,Japan and Taiwan,there are relevant provisions on datio in solutum(datio in solutum),which define datio in solutum as principal contract.Following the relevant legal systems of datio in solu tum in other countries,some of them adopted the doctrine of the materiality of datio in solutum,and at the same time,they were combined with the traditional civil law of China,which led to the problems of unclear system and unclear concept.The author tries to clarify the nature of datio in solutum and its legal application by analyzing the definition,nature and constitutive requirements of datio in solutum and combining with relevant classic cases.Datio in solutum has the legal nature of consensual and causative;In practice,it should be distinguished from liquid contract and assignment guarantee from the perspective of legal nature and constitutive elements.The datio in solutum reached by the parties after the expiration of the time limit for the performance of the debt may also constitute the liquidation of the new debt if the new debt and the old debt coexist.Generation after discharge set up,will not lead to debt destroyed or invalid,generation of the expiration of the time limit for the payment of the settlement agreement,the debtor fails to fulfill its generation settlement agreement,the settlement agreement to the generation of property cannot achieve the purpose of the original debt,the creditor shall have the right to demand that the debtor to fulfill the original debt,also can request the obligor to perform generation settlement agreement.In the case of defective datio in solutum performance,the provisions on guarantee of defects in the Contract Law can be similarly applied,because the alternative payment for repayment is specific and has the characteristics of compensability.Datio in solutionshould be considered in the performance and application of creditor protection principle.