| As a method of repayment of debts,paying-a-debt-in-kind-assets is an arrangement between the parties on how to pay off debts.In the case of financing difficulties such as private loans and construction projects,paying-a-debt-in-kind-assets can promote the smooth progress of transactions,so it is widely adopted.However,datio in solutum,floating mortgages and charges,alienation guarantees,fraud litigation,changes in debts,etc.,which accompany paying-a-debt-in-kind-assets,have had many impacts on the current legal norms of our country,and the phenomenon of different judgments in the same case is prominent in judicial practices.Different judgments in the same case are prominent in judicial practice.Although the minutes of the Ninth National Civil Trial Work Conference on November 14,2019(hereinafter referred to as the "Minutes of the NNCTWC")divided the agreement on paying-a-debt-in-kind-assets into "before the expiration of debt performance period" and "after the expiration of debt performance period",it is still difficult to deal with the complex situations effectively in practice,especially the issue of paying-a-debt-in-kind-assets in the field of construction,which is still a topic worthy of in-depth study.The "Civil Code of the People’s Republic of China"that came into effect on January 1,2021 does not regulate the agreements on paying-a-debt-in-kind-assets.The Fourth Chapter Regarding Atypical Security Article 68 of the "Interpretation of the Supreme People’s Court on the Application of the Guarantee System of the ’Civil Code of the People’s Republic of China’" that was implemented on the same day only stipulates that the debtor and the creditor agree to transfer the property formally to the creditor’s name,and how the property should be handled,but paying-a-debt-in-kind-assets that does not fall into the scope of security is still in a blank state of legislation.In the overseas legal system,the most similar to our country’s repayment of debts is the "datio in solutum" system stipulated by Germany,Japan and Taiwan of my country.However,the important contract theory of the "datio in solutum" system does not conform to the trend of contractualization,and it provides limited reference for the development of the legal system of repayment of debts in my country.In response to this situation,this article has collected and sorted out the legal norms of agreements on paying-a-debt-in-kind-assets in our country and the judgments on related cases of the Supreme Court.Using this as research data,through historical research,empirical and value analysis,this article researches the legal regulation of the agreement on paying-a-debt-in-kind-assets in our country.First of all,the agreement of paying-a-debt-in-kind-assets is an agreement reached between the parties agreed to replace the original payment with another kind,and it is an unnamed contract.When the debtor is unable to perform the old debt as agreed,the creditor can reduce transaction risk and cost by paying-a-debt-in-kind-assets,thereby ensuring the realization of the debt.According to the different attitudes of legal regulations in different periods,the development process is divided into three stages:upholding important contract,eliminating guarantee function and the promise contract stage and returning to the promise contract.Each stage is represented by a typical case or rule.Up to now,the Supreme Court has has maintained a cautious attitude.The NNCTWC recently proposed that the agreement on paying-a-debt-in-kind-assets should be divided into two stages,taking into account the autonomy of the parties’ will,avoiding floating mortgages or charges,blending the previous views,promoting the progress of legal regulation of agreements on paying-a-debt-in-kind-assets greatly in our country.Secondly,although legal regulation of agreements on paying-a-debt-in-kind-assets in our country have made a qualitative leap in our country,and some provincial high courts have also made active explorations,it has to be admitted that compared with the actual needs in private lending,construction projects and other fields,there are still many shortcomings.1,The"Civil Code" and supporting judicial interpretations fail to clarify the concept,nature,the relationship between new debt and old debt,etc.,which has put people and judges in a state of chaos on how to regulate the agreement on paying-a-debt-in-kind-assets.2,the provisions on the agreement on paying-a-debt-in-kind-assets are not systematic,and the liability for breach of contract lacks regulation.The 2015 ENCTWC still uphold the viewpoint that the agreement on paying-a-debt-in-kind-assets requires material properties,and there are only two regulations in the NNCTWC,Lacking response to various difficulties encountered in the implementation of agreement on paying-a-debt-in-kind-assets.3.The "Implementation Objections Regulations"are still trapped in the obscurity of the physical properties of the repayment agreement.This has led to the fact that no matter how the case is heard,the repayment transfer is still required to sign a formal housing sales contract,pay the full amount of the house payment,and actually.Taking over the house,shelving the academic consensus on the agreement to be a promised contract;4,the prevention of false lawsuits still needs to be improved.The proliferation of false lawsuits has made courts a paradise for liars,and judges have become lie detectors.The existence of false lawsuits is not only something that needs to be faced by repaying debts with material,but also the general problem that civil litigation needs to face.Third,starting from the trial practice,we put forward suggestions for improving the legal regulations of my country’s debt settlement agreement.In view of the status of repayment agreements,the introduction of judicial interpretations of repayment agreements is an important step to improve the repayment agreements.The first is to form a systematic institutional framework to publicize the concept,nature,performance,liability for breach of contract,and rules on changes in property rights,etc.,so that ordinary people will know the law’s impact on the property settlement agreement as if they knew the Civil Code regulatory strategy;The second is to refine the implementation rules of the repayment agreement in real terms,to determine the effectiveness of different types of repayment agreements in real terms,and to grant the property repayment agreement after the expiration of the debt performance period with the expectation of real rights;The third is to impose the most severe sanctions on parties who have reached a false debt-in-kind agreement to prevent the impact of false litigation on judicial credibility and prevent the court from becoming an accomplice of the parties in avoiding debts. |
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