Research On The Coexistence Of Debt Undertaking

Due to gaps in legislation,academic development,and full development and wide application in judicial practice,the coexistence of debt undertaking system has aroused the constant attention of theoretical and practical circles.China has actively explored the construction of the system in the compilation of the civil code,and has results are appeared.The Civil Code(Draft)of the People's Republic of China,published on December 28,2019,for the first time clearly stipulates the system from a legal level,which can be described as a major improvement in legislation.But unfortunately,the relevant provisions of the draft are not perfect enough,and it still deserves further discussion.This article is divided into three chapters,which are summarized as follows:The first chapter selects a typical case as the introduction case,analyzes and refines the factors related to the coexistence of debt undertaking in the case,and concludes many elements of coexistence of debt undertaking system.In combination with other real cases in judicial practice,the case is compared with the case of the introduced case,and the major and difficult issues in the judicial practice of coexistence of debt undertaking system are summarized.The focus is on the determination of coexistence of debt undertaking and the laws that arise effect.The last two chapters are the concrete analysis of these two major types of problems.The second chapter discusses how to identify coexistence of debt undertaking,mainly including four aspects.The first is about the way in which coexistence of debt undertaking occur.By collecting and sorting out narratives about this issue in science and judicial practice,and using methods to find similarities and differences,it is found that coexistence of debt undertaking should be consider as a form of contract,that is,based on contract principles.It is sufficient to explain that the third party unilaterally voluntarily joins the debt,and there is no need to separately stipulate the third party's unilateral commitment as one of the ways in which coexistence of debt undertaking occurs.The second is related to the constituent elements of coexistence of debt undertaking.Based on the analysis of the constituent elements one by one,the focus of the dispute is clarified and explained.Among them,the debts that will occur in the future must be recognized as coexistence of debt undertaking,which can be explained by reference to the future creditor's rights transfer model.In addition,on the occasion of a direct contract between a third party and the debtor,the creditor agrees is not a condition for establishing coexistence of debt undertaking?But this does not mean that the creditor's consent is insignificant,and it also plays an important role in distinguishing between exemptions and coexistence of debt undertaking.The third is the analysis of coexistence of debt undertaking and guarantees.The two systems are distinguished from the perspectives of academic theory and judicial practice,and a set of criteria for rationally distinguishing the two can be summarized.It can be summarized as a combination of subjective and objective methods.Simultaneously,Focus on objective method.The fourth is the scope of the third party in coexistence of debt undertaking,that is,who can become a debtor.In this regard,the relevant provisions of the guarantor should not be applied by analogy.When the state and the public interest are not harmed,the subject that is prohibited by the state organs and the like as a guarantor must also become a debtor.In addition,the company has special characteristics as a debt owner,that is,it must use the rules of company is allowed to provide guarantees to others,and perform the shareholders meeting or the board of directors' resolution procedures.The third chapter mainly expounds the legal effect of coexistence of debt undertaking,which also starts from four aspects.The first is the scope of liability for coexistence of debt undertaking.By summarizing the views of the theoretical and practical circles on this issue,it is found that the differences mainly focus on joint and several liability and no real joint liability.In addition,by comparing and analyzing the many characteristics of joint and several liability and no real joint liability,the conclusion that joint and several liability is more reasonable is drawn.The second is whether coexistence of debt undertaking are subordinate to rights and obligations,which are specifically manifested in the scope of liability of the debtor and the impact of coexistence of debt undertaking on the guarantor's guarantee liability.Generally,except the main debt,the third party should also bear the interest debt and liquidated damage debt after joining the debt.It must be particularly pointed out that the participation of a third party in debt is not have any impact on the existing guarantee relationship,unless the guarantor expressly agrees to provide a guarantee for the third party.The third is the third party's defense issue.First,based on a comprehensive analysis of the scholars' views,it is found that the third party may invoke the original debtor's right of defense against creditors that occurred before the debt was added,but the scope of the citation is limited,and given an example to explanation;Second,the third party shall not demonstrate the basic legal relationship between the third party and the original debtor against the creditors,and separately demonstrate from the perspective of the non-cause of coexistence of debt undertaking and the measurement of benefits.The fourth is the issue of the debt recovery subject's right to recovery.First,it is clear that the scope of the debt settlement subject includes the original debtor,a third party,and the guarantor.And then discuss the problem in different situations.The specific manifestation is whether the third party can recover from the original debtor and the guarantor should recover from whom.For the third party's right of recovery,by enumerating the current views of the theoretical and practical circles,a comparative analysis shows that after the third party has settled the debt,it can recover from the original debtor.As for the guarantor's right of recovery,processing based on whether the guarantor is a party to coexistence of debt undertaking and is considered in combination with the time when coexistence of debt undertaking take effect.