The Research On The Differences Between Co-figurative Debt Delegation And Guarantee

In recent years,co-figurative debt delegation has become a new form of credit enhancement and has been used widely in practice which has the functions of protecting creditor’s rights and improving efficiency.Due to the lack of legislation and theoretical research,the orientation of co-figurative debt delegation is unclear and the value of the system is unknown.The cognizance of co-figurative debt delegation in judicial practice is perplexing.In the debate of the difference between co-figurative debt delegation and similar systems,the distinction between co-figurative debt delegation and guarantee is important.The aim of this article is to correctly grasp the "out" and "in" of co-figurative debt delegation to distinguish between co-figurative debt delegation and guarantee.The main content of the first chapter was to sort out the status quo of legislative and judicial decisions in China.The Article 84 of Contract Law of China only applied to exempted debt commitments.The "partial transfer" in them cannot be used as the basis for the application of debts.Although the corresponding law has not been established the corresponding co-figurative debt delegation rules,it has already appeared in some local judicial documents.Under the guidance of doctrine and local judicial documents,plenty of cases of co-figurative debt delegation have appeared in judicial practice.By collecting the typical cases involving co-figurative debt delegation in the past three years,there exists two problems,that is,“misusing of co-figurative debt delegation” and “biased adjudication”.It can be related to unclear referee basis,the unclear positioning of co-figurative debt delegation,and the different identification standards.To solve these problems,legislative and judicial response become necessary.The second chapter discussed the necessity of distinguishing between co-figurative debt delegation and guarantee,that is,should they be distinguished? This chapter analyzed the advantages and disadvantages of the two different judgements of "differentiation theory" and "non-differentiation theory".The "non-differentiation theory" didn’t consider that different cognizance will have a big influence on interest of each parties,by comparison the "discrimination theory" is more reasonable.In addition,based on the "differentiation theory",we should pay more attention to identify some special situations where co-figurative debt delegation and guarantee may coexist.Secondly,it is so clear that co-figurative debt delegation is an independent debt protection system which is different from guarantees.On the one hand,the theory of co-figurative debt delegationoriginated from the debt undertaking theory in modern times;On the other hand,the co-figurative debt delegation has unique regime values,such as saving transaction costs and improving transaction efficiency,it can remedy the flaws of guarantee of practical effects.The third chapter discussed how to differentiate the co-figurative debt delegation and guarantee.Analyzed the existing identification routine of "indication of interest-standard of interest + presumed debt incorporation" based on the criteria for distinguishing debt incorporation from guarantee in individual cases.Based on the position of protecting creditors,the presumption rules have caused "biased judgments",and have also led to the misunderstanding of adding debt as "the secondary guarantee" in practice.In this regard,this article puts forward the rules of distinguishing and identifying with "indication of interest-standard of attribution of interest + attributability" for the reference of distinguishing the addition of debts and guarantees in individual cases.The main content of the last chapter is to discuss how to apply to co-figurative debt delegation.Based on different research perspectives,argues exists in the debt joining system.The academic community may classify debt joining as debt transfer or incorporate it into the debtor-debt relationship of most parties.Therefore,there are two paths in the application of the debt joining rules.One is to apply the joint debt rules to deal with the debt joining;the other is to apply the guarantee specifications by analogy.The premise of the application of analogy is an important legal evaluation point of the above-mentioned two points.In addition,given the essential difference in legal nature between co-figurative debt delegation and guarantee,debt should be prohibited from being included in the compliance and supplementary provisions of analogy applicable guarantee.The related provisions of joint liability guarantee can be analogized to a limited extent by co-figurative debt delegation.If there is a dispute between the parties regarding the form of establishment of co-figurative debt delegation,co-figurative debt delegation can be analogized by applying the form requirements.In addition,after the third party has paid off the debt,it can exercise the right of recovery to the debtor within the scope of the debt already settled in accordance with the internal debt recovery rules of the joint debtor.