A Study On The Legal Nature And Effectiveness Of The Agreement Of Expiation Of Debts In Kind

As one of the debt settlement methods,the agreement of expiation of debts in kind is widely used in civil activities because of its advantages of convenient operation,reduced transaction costs,and efficient debt settlement.However,at present,there are no clear provisions in Chinese law to regulate this agreement.In addition,in practice,the flexible contract type of the agreement of expiation of debts in kind has led to the confusion of judicial standards in judicial practice and the phenomenon of different judgments in the same case.The function of the agreement is more likely to harm the interests of the parties.Therefore,this article will proceed from the current judicial practice in China,summarize the basic situation and existing problems of the judicial judgment of the agreement of expiation of debts in kind,and combine it with the theory on the basis of judicial practice to explore the legal nature and effectiveness of the agreement of expiation of debts in kind.At the same time determine the applicable rules for debt settlement in order to improve the system of the settlement of expiation of debts in kind and provide better guidance for judicial practice.The article will first sort out and summarize and analyze the existing cases related to the agreement of expiation of debts in kind,explore the judicial treatment of the agreement at the current stage,and then discuss the legal nature of the agreement with the relevant cases.According to the theoretical and practical viewpoints,this article divides the agreement of expiation of debts in kind into the nature of datio in solutum,the nature of contract modification,the nature of new debt repayment and the nature of guarantee.At present,the determination of whether the debt settlement is effective in practice is mainly based on the relevant provisions of the Contract Law of our country on the validity of the contract.The special thing is that to determine the validity of the agreement of expiation of debts in kind,there needs to be a legal and effective original debt relationship.In addition,the validity of the agreement of expiation of debts in kind need to be judged according to the legal nature of different types of agreements of expiation of debts in kind.After clarifying the legal nature and legal effect of the agreement,this article also analyzes the applicable rules of the agreement of expiation of debts in kind.Starting from the relevant judicial rulings of different types of agreements of expiation of debts in kind,there are currently practical contracts and promised contracts for agreements of expiation of debts in kind.This determines when the agreement of expiation of debts in kind is established,which affects the parties' rights and obligations and the method of execution of the agreement of expiation of debts in kind.This article insists that unless the parties have expressly agreed,based on considerations of autonomy of the will and to facilitate the realization of the creditor's interests,the agreement on indemnity should generally be regarded as a promise contract and the general rules of the consensual contract shouldbe applied.Through the discussion of the above content,the types of agreement of expiation of debts in kind will be clearly defined,the legal nature and legal effect of the agreements and the applicable rules of the agreements in different situations will be determined,in order to improve the theory of the agreement of expiation of debts in kind,provide reference for the rationalization and standardization of court rulings in judicial practice.