Applicable Law Of Debt Joining

Debt joining has been widely adopted in real life as an effective credit enhancement measure.However,due to the lack of clear provisions in the law,there are endless disputes about debt participation.Legislators responded to social concerns during the compilation of the Civil Code and actively explored the debt joining system.The Civil Code of the People’s Republic of China(hereinafter referred to as the "Civil Code")promulgated on May 28,2020 provides for the first time the debt accession system from the legislative level,which fills in the gaps in the legislation.However,due to the relatively simple provisions,further work is needed.The perfection.The main issues discussed in this article are as follows: First,can the statutory debt joining method meet the needs of real life? In theory,there are many ways to establish debt inclusion,but the "Civil Code" only adopts two of them,which may not be enough to cope with the changing real life.Second,when is the determination of debt joining in doubt? The judicial interpretation formally established the rule of presumption as guarantee in case of doubt,in order to correct the current situation of excessive protection of creditors.As a general rule,it is necessary to make strict restrictions on its applicable conditions.Third,what is the legal effect of debt joining on all parties? Debt joining involves three parties: the creditor,the debtor,and the third party,and the legal effects of the three need to be discussed separately.In addition,the follow-up treatment of invalid debt is rarely mentioned,and the author will explore it.This article is divided into three parts,the main contents are as follows:The first chapter is an overview of debt joining,specifically including: the development process of debt joining,the constituent elements and specific types.Although the "Civil Code" provided for the inclusion of debts for the first time,it is not a new system.As early as 2005,the Jiangsu Provincial High Court made clear provisions on the inclusion of debts in its meeting minutes,and it was adopted and used by courts at all levels.From the provisions of Article 552 of the Civil Code,we can deduce the constituent elements of debt inclusion,which mainly include three elements: the existence of valid debt,the transferability of the original debt,and a clear expression of meaning.For the special subject of the company,the Minutes of National Court Civil and Commercial Trial Work Meeting also made special provisions for its joining behavior.Regarding the establishment of debt accession,the Civil Code does not adopt traditional theories,but only stipulates two ways: the debtor and the third party reach a mutual agreement,and the third party unilaterally promises.Whether this provision can meet the needs of real life,The author will discuss in detail in the paper.The second chapter is about the specific determination of debt joining.Due to the high degree of similarity between debt joining and guarantee,exemption of debt and performance to third parties,it leads to confusion in the application and determination of debt joining and similar systems.First of all,the author starts from the concept itself,and in theory makes a clear distinction between debt joining and guarantee,debt joining and exemption of debt undertaking,debt joining and performance to a third party.Secondly,through the establishment of cases of debt participation in judicial practice,the author found that in practice,disputes about third parties constitute debt participation or guarantee are more concentrated,and the judicial interpretation of the Supreme People’s Court on the guarantee system responded to the above questions and formally established The rules that are presumed to be guarantees when in doubt.This point is consistent with the changes in the guarantee presumption rules.It can be seen that the legislation no longer simply emphasizes the protection of the interests of creditors,but pays more attention to the balance of interests between multiple parties.Finally,although the rule of presumption as guarantee when in doubt provides clear guidance for the court’s adjudication work,it cannot be abused.The question of when to doubt still needs to be explored.It is still not possible to respect the true intentions of the parties and combine existing evidence.This rule needs to be applied only when the behavior of the third party is qualitative.The third chapter is about the legal effect of debt joining.As far as the creditor is concerned,since the addition of the debt is beneficial to the creditor without any harm,the express consent of the creditor is not an effective requirement.The creditor takes effect from the mutual agreement between the debtor and the third party or receives the unilateral promise of the third party.After that,you can obtain the right to claim.For the debtor,the form of liability with the third party has always been the focus of debate in the theoretical and practical circles,but whether it is the theory of joint and several liability or the theory of unreal joint liability,there is no substantive protection of the creditor’s rights.The difference.Even if the Civil Code determines that the final form of liability is a joint guarantee,the parties can also make a separate agreement.As far as the third party is concerned,although the addition of debt is subordinate to establishment,it can develop independently after establishment,so the invocation of the right of defense should be based on the addition of debt;in terms of the right of recovery,if the parties do not make an agreement on this,The third party can recover the debt from the debtor for the part exceeding the share borne by the third party.In terms of debt and rights,the third party becomes a new debtor due to the addition of debt,and is naturally responsible for the debt,but the burden of the debt must still be added to the debt;because the guarantee has a strong personal dependency,Therefore,the third party will not obtain the guarantee from the guarantor as a matter of course.Finally,if the creditor expressly refuses within a reasonable period of time,the debt addition will not take effect,but the principle of invalid behavior conversion can be referred to in the subsequent processing process to transform it into other valid behaviors.