Research On The Theory Of Paying A Debt In Kind Assets

Paying a debt in kind Assets is a way to conclude the Claims and Debts relationship by using the substitute to pay off the debt.In recent years,this way of repayment is coming more and more popular.On one hand,it’s a way to assure the creditor gets repayment.On the other hand,it provides other methods for the debtor to pay off debts,not just by using the cash.As a result,civil cases on this kind of the claims and debts are growing.However,our Chinese legislative system does not have sufficient legislative regulations to support the civil action of the Paying a debt in kind Assets.The research on the connotation and the character of paying a debt in kind Assets is not deep enough.The theory system has not set up yet.During the judicial adjudication,the judges have different comprehensions about the character,the efficacy and the relief rule on the paying a debt in kind Assets case and finally get the different sentence runs.The reason is that judges can only find the theoretical basis from the basic theory of the Contact Law and current view in the Civil legal system.The guiding opinions and minutes of meeting of Supreme Court and Local Supreme Court are not so accurate to form unified referee rules.Under this circumstance,The judgement may damages the interest of the lawsuit’s parties and don’t have the guiding effect.It will have bad effect on the judicial authority.In order to make up for the defects of system,such as the lack of legislative,the disunity of validity rules and the confusion of the application of relief measures after the adjudication,it is necessary to supplement “alternative performance of debts” in The Civil Code so as to briefly regulate the connotation and character of paying a debt in kind assets as well as legal consequences on the basis of respecting the party’s autonomy and carrying out the fairness.Meanwhile,the Supreme Court need to issue the judicial interpreting to paying a debt in kind assets,which comprehensively regulate the application,so that the practice can be better guided.The determination of validity of paying a debt in kind assets can be studied by classifying the debts.For instance,according to the different contents agreed by both transaction parties,paying a debt in kind assets before debts performance period can be classified into fluiditycontract and mortgage,and that after performance period can be classified into datio in solutum,new debts repayment and upgradation of debts.During the performance of repayment,if there is any defect in substitute,the creditor may,according to the character of the original obligation and the content of alternative payment,choose to guarantee liability referring to the sales contract,gift contract or contractor’s agreement;If the debtor fails to perform the agreement of paying a debt in kind assets following the law,which constitutes a fundamental breach of contract,the creditor has ability to require the performance of old debt and to bear the liability for breach of contract,or to terminate the agreement and claim the performance of the original debts from the debtor.