Study On The Constituent Elements Of Debt Accession

The concept of debt accession is that,provided that the original debtor does not withdraw from the debt relationship,the debtor accedes to the debt through various forms of genuine intention to join the debt and is jointly and severally liable to the creditor with the original debtor.By comparing with other similar systems,it can be concluded that debt accession has four characteristics: the original debtor does not withdraw from the debt relationship,the debt accession is established without the consent of the creditor,the debt accession has relative independence and the debt accessionor is jointly and severally liable with the original debtor.The number of debt accession cases in judicial practice is increasing day by day,but there are often different judgments in the same case.There is a lack of reasoning in judicial decisions on the constitutive elements of debt accession,and the courts have not yet formed a unified view on the constitutive elements of debt accession.In practice,there are multiple standards of four elements,two elements and three elements,resulting in the determination of debt accession becoming a difficult point for judicial decisions.According to the analysis and summary of the judicial practice,the following deficiencies exist in the constitutive elements of debt accession in China’s current civil code: firstly,the subject qualification of debt accession is not clearly defined,especially the issue of whether state organs,non-profit legal persons with public interest purposes and unincorporated organisations can become debt accessions;secondly,the method of establishment of debt accession by agreement between the debt accessionist and the creditor is not clearly defined and the method of establishment of debt accession is not clearly defined.Secondly,it is not clear whether the debtor’s consent is required and whether the debtor has the right of refusal.Thirdly,as the functions of accession of debt and guarantee are similar and their forms of expression are also similar,the problem of difficulty in distinguishing between accession of debt and guarantee often arises in practice,but there are no legal provisions that specifically address this issue;fourthly,whether accession of debt is limited to existing debts is not clearly stipulated in the current law,and the question of whether accession of debt can be established for future debts is not explained.Fifthly,it is not clearly stated whether the accession of debt is an essential act,which has led to disputes in judicial practice on the determination of accession of debt.Considering the purpose of the legislation,the experience of judicial practice and comparative law,the reasonable elements of debt accession should be as described below.First of all,with regard to the qualification of debtors,in order to protect the legitimate rights and interests of taxpayers,debt accession should be restricted to legal persons of institutions;for the purpose of safeguarding the interests of the unspecified majority of people,non-profit legal persons and unincorporated organisations with public interest purposes should be restricted to become debt accessions.Therefore,the subject qualification of debt accession should be limited to natural persons and Enterprise legal persons.Secondly,the debtor should make the intention to join the debt,and make it clear that the debtor and the creditor can also join the debt if they reach an agreement,and at the same time,the debtor should enjoy the right to object in accordance with the requirements of the system.It is necessary to make specific provisions on the distinction between debt accession and guarantee from the perspective of textual interpretation,the difference between subordination and complementarity,and the doubtful analogy to guarantee,so as to clarify the true intention of the parties.Again,the accession of debt should not be limited to existing debts,but should also be possible for future debts.Next,if the debtor and the debtor agree to join the debt,they must notify the creditor within a reasonable period of time.If the debtor and the creditor agree to join the debt,no notification to the debtor is required.If the debtor accedes unilaterally,the creditor does not need to be notified,but the creditor has a right of refusal within a reasonable period of time.In order to protect the interests of the debtor,it should be stipulated that the accession of debt is a non-essential act and can be freely chosen according to the intention of the parties.By constructing a reasonable composition of the elements of debt accession,the difficult problems in judicial practice can be solved.