Legal Research On Paying The Debt By A Thing

With the development of society and economy,the use of debt settlement as a substitute for debt payment has been widely available among people.However,due to the lack of revelent regulations in China’s civil law,the Supreme Court has not issued a special judicial interpretation.There are different understandings of the establishment requirements and the validity of the contract,which lead to different judgments on similar cases.Considering the efficiency of resolving debts with debts,the author believes that it is necessary to Recognize the debt settlement contract in terms of property,performance,etc.,and propose to institutionalize the debt settlement in time and incorporate it into civil legislation to provide an effective basis for the judgement in a timely manner and to provide the public with stability and reliability when engaging in corresponding civil legal acts as expected.Through the judicial data platform,the author found that there are three major controversial issues in the current judgment of issues related to debt settlement in China: First,the establishment of a debt settlement contract,that is,whether a debt settlement is a material contract or a promised contract,Is the debt-recovery property a necessary condition for the establishment of a debt-recovery contract? Second is the issue of the effectiveness of the debt-recovery contract,that is,whether the debt-recovery contract reached before the expiration of the performance period is in violation of Article 186 of the Property Law.The "ban on extortion" is invalid? How can a debt settlement contract avoid an imbalance in the interests of the debtor due to violent exploitation? The third involves the performance of the debt settlement contract.When the parties’ agreement is unknown,how should the basic debt relationship be eliminated? What is the performance order of the original payment and the original payment? If the debtor does not perform the replacement payment determined in the debt settlement contract,how will the original payment right be exercised? In response to the above main issues,the author comprehensively conducts empirical research,comparative law research,and law hermeneutics.Method,comparing legal theory and judicial practice,trying to find the optimal solution among the various referee logics and interpretation paths givenRelevant controversial issues in order to anchor debt-to-debt contracts.The thesis includes an introduction and four chapters.The introduction starts from the background of the substantial increase in the number of judgments on debt settlement in China from year to year,proposes possible problems in the judgment of debt settlement on mortgages,and points out the significance of improving related research.At the same time,the research methods of this paper are introduced.Literature review and thesis framework.The first chapter starts with the concept of repaying debts by property,distinguishing between "reimbursement with property" as an alternative performance(liquidation)of debt and "contractual payment with property" as the result of the parties’ agreement.The evolution of the judicial view of the Supreme Court is a clue.Combined with the comparative law interpretation of the concepts of "substitution settlement" and "new debt settlement",the nature of the debt settlement contract is analyzed,and the original settlement clearly states that the debt settlement contract is a promised contract,and the "materiality" of contract performance should not be traced to the ground.As an element of the establishment of the contract,it is pointed out that this debate on "requiring properties" is actually a misunderstanding in the process of "replacement of surrogates" and "reinheritance".On the basis of the explicit promise of the physical debt settlement contract,continue to point out that The constituent elements of the debt settlement contract are: the old debt that exists legally and the willingness to substitute payment for liquidation;The second chapter mainly focuses on the special type of "mortgage guarantee contract"-"contract guarantee".It compares and reviews three different interpretations of "contract guarantee" : "property guarantee theory","contract guarantee theory" and "substitute guarantee" "Reservation appointment theory",after analyzing the logical flaws of the first two interpretation methods,the author affirmed the "representation repayment appointment theory".Then on this basis,I raised the application of the "prohibition rule",and I noticed that many judgment documents In the argument,after the judge correctly identified the nature of the legal relationship,he largely applied the provisions of Article 186 of the Real Right Law to negate the effectiveness of the debt settlement contract.In this regard,the author pointed out from the perspective of legal interpretation that the debt settlement contract or surrogacy The so-called "rule of prohibition on expulsion" cannot be applied to the settlement of settlement,which involves imbalance of interests.The debtor can refer to the "revocation right" stipulated in Article 54 of the Contract Law to seek relief.Finally,the author pointed out that in order to achieve the purpose of drawing a salary at the bottom of the kettle To achieve a balance between the interests of creditors and the interests of debtors,a compulsory liquidation rule should be introduced.When creditors require that the debtor be owned by them,they should be liquidated,especially if the basic legal relationship is a loan dispute.Liquidation shall be carried out to prevent and combat disguised usury.The third chapter deals with the performance of debt-for-debt contracts.When the two parties are unclear about the existence of the old debt,the interpretation of the parties’ intentions should adopt a rigorous stance.Except for the explicit expression,it should not be regarded as an update of the debt but a new one.Debt settlement,that is,the new debt and the old debt continue to exist at the same time.In the performance order,the debtor should perform the replacement payment first.Only when the replacement payment cannot be performed,the creditor can request the restoration of the original payment.In the order,according to the principle of good faith,both parties There is no option.When the debtor defaults on the performance of the replacement payment,and the degree of default reaches the "moderate derogation of the fundamental default" standard,the creditor can directly sue for the performance of the original payment without dissolving the debt settlement contract.The forth chapter puts forward possible legislative suggestions and justification analysis based on a comprehensive analysis of the nature,effectiveness and performance of the debt settlement contract.The author believes that it is necessary to institutionalize the debt settlement by civil legislation in a timely manner to facilitate the civil subject Stable expectations are formed,and it is recommended that the Supreme Court issue a special judicial interpretation in a timely manner to establish a unified refereeing rule,achieve case justice,and maintain judicial authority.