| Debt accession is an increasingly accepted and used way to guarantee the realization of creditor’s rights,while providing people with more diversified choices.There have also been many theoretical and practical disputes,reflecting many problems in China’s current debt accession system.First of all,in China’s legislation,the "Contract Law" and "General Rules of the Civil Law" provide for the transfer of creditor’s rights and debts,but there is no specific legislative regulation on the addition of debt accession.Secondly,in the literature of the mainland and Taiwan,most of the contents related to assumption of debt are mainly debt-free obligations.There are few theories about debt accession in depth,and only a general description of debt accession is given.The current theory has not been deeply analyzed from a practical perspective on its own characteristics.Finally,from the perspective of judicial practice,due to the lack of the above two aspects,there is a lack of perfect legal and theoretical basis when there is a dispute in practice.There are many ambiguities in the judgment of courts at all levels,and judges can only draw on the opinions of higher courts.or use their own discretion,which leads to many different judgments in the same case.Based on the above problems,the author believes that starting from judicial practice to systematically interpret debt accession and explore solutions to corresponding problems is indeed necessary to regulate the operation of debt accession in theory and practice.This article is divided into three chapters for discussion.The first chapter introduces the concept and historical development of debt accession,and introduces the relevant systems of debt accession in civil law countries and regions,and then returns to the focus of disputes on debt joining in China’s judicial practice.Through comparative analysis,it explains operating mechanism of debt accession.The second chapter focuses on the composition of debt accession.Based on clarifying the establishment requirements of debt accession,the characteristics of each of the four different establishment types are discussed.The distinction between debt accession and similar systems is the key content of this section,which aims to respond to the problem of the distinction between debt accession and guarantees,cumulative assumption of debt and performance commitments that have occurred most in practice.The third chapter mainly discusses the legal effect of debt accession.This involves discussing whether the third party and the original debtor establish the joint liability or the unreal joint liability,and also involves the distribution of liability between them.It is the problem that needs to be solved urgently after the establishment of debt.Similarly,the regulation of the right of defense and the right of recovery is also a part that cannot be ignored in perfecting the debt joining system.On the basis of the above discussion,combined with the contract draft of the civil code,the author puts forward some preliminary suggestions on the legal provisions,in order to be helpful to the legislation and judicial practice. |
