| Paying debt by rent means that the debtor rents the goods to the creditor in order to eliminate the debt.It is a new way of debt settlement in the process of social and economic development.In the process of paying off debts by rent,the parties shall extinguish the debts by way of establishing a new lease debt.The newly established lease debt is a new debt,and the extinguished debt is an old debt.As a convenient and efficient way of debt repayment,the application of rent for debt is more and more common in practice,which leads to more and more disputes.However,China’s current legal system has not yet provided for this,and the judicial practice lacks a consistent basis for judgment.Therefore,there are different opinions on how to recognize and deal with the cases of rent for debt.There are different emphases in practice and theory.The judicial practice focuses on whether the rent for debt can be applied according to the lease contract,and there are many opponents.The theoretical circle focuses on the nature and effect of the rent for debt,and tends to recognize that the rent for debt belongs to the new debt repayment,and affirms its lease attribute.Based on the introduction of cases,this paper discusses the problems existing in the identification and handling of the dispute of paying debt by rent in China,and on the basis of judicial practice,makes a theoretical analysis of the nature of paying debt by rent,and finally discusses the ways to resolve the dispute of paying debt by rent.The first part,through case analysis,studies the judicial practice on the point of view of paying debt by rent,including the relationship between ordinary creditor’s right and debt,the relationship between guarantee contract and lease contract,etc.Generally speaking,it tends to deny the lease attribute of paying debt by rent.Further analysis of the reasons for the different judgments of the judicial organs in the same case lies in:first,the unclear understanding of the rent for debt and the lease contract;second,it is difficult to distinguish between the false lease and the rent for debt;third,there are concerns about the conflict of interest after the recognition of the rent for debt.The second part,first of all,from the norms,value,economy,customs and other theoretical basis of civil law,demonstrates the legitimacy and rationality of paying debts by rent,in order to correct its name.Secondly,from the model,elements,legal relations and other aspects to define rent for debt.Thirdly,on the basis of practice,this paper analyzes several theories of paying off debt by rent.Both new debt settlement and debt renewal are reasonable explanations of paying off debt by rent.It should be recognized separately according to the contract.Advance set off is only a specific way of performance of new debt,which can be classified into new debt settlement and debt renewal.The contract of paying debt by rent is different from paying debt by rent,which is the combination of lease contract and offset contract.The third part,on the basis of the summary of judicial practice and theoretical analysis,analyzes how to distinguish between debt to rent and false lease,how to resolve the conflict of interest after recognizing the lease attribute of debt to rent,and puts forward solutions,in order to provide reference for judicial practice. |
