Addition Of Debtor From The Perspective Of Civil Code

In a wide range of social life practice,addition of debtor,as an effective means of credit enhancement guarantee,has long been used by the transaction subject and recognized by legal theory and judicial practice.However,its state of no written law lasted for a long time until the promulgation of the civil code.Although the entry into the code makes it clear that the third party bear joint and several liability rather than unreal joint and several liability,some old problems still exist and new problems have arisen.For a short article,the supply of norms is insufficient,and there are still different opinions and lack of attention for judicial application,which needs further research and discussion.This paper is mainly divided into three chapters to discuss relevant issues:The first chapter is the establishment of addition of debtor.This chapter is divided into two sections.Among them,the first section discusses the problems in the constituent elements of addition of debtor,and the second section discusses the way to reach addition of debtor.As for the constitutive elements of joint assumption of debt,there are three points that need to be paid attention to: first,from the object,the future debt can also establish joint assumption of debt;second,from the expression of will,the expression of will of the creditor is not insignificant;third,the debt that cannot be transferred according to its nature cannot constitute addition of debtor when the creditor agrees to transfer.For addition of debtor,the civil code only stipulates two ways of reaching,which is not enough to reflect the whole picture.There should be four ways of reaching.The reason why the legislators of the civil code ignore the other two is that they consider the number of application opportunities and pursue the simplicity of legislative language.The second chapter is the identification of addition of debtor.This chapter is divided into three sections.The first section discusses its relationship with the substitution of debtor,the second section discusses its relationship with other related contracts,and the third section discusses its relationship with the guarantee system.As for the addition of debtor and substitution of debtor,it is also known as coexisting debt commitment.Both joint debt commitment and exemption debt commitment have the words "debt commitment" and are stipulated in the front and rear articles of the civil code,so it is necessary to distinguish.The core of the distinction between the two lies in whether the debtor withdraws from the original creditor’s right and debt relationship.As for addition of debtor and related contracts involving others,because the structure of addition of debtor is very similar to that of related contracts involving others stipulated in the civil code,it is also necessary to distinguish.The main core of the distinction is to explore the meaning of the undertaker,and the consequences of the distinction are mainly reflected in whether the creditor has the right to claim against the third party.The distinction between addition of debtor and guarantee has always been difficult,especially in practice.All in all,it is the problem of the interpretation of meaning expression.It should be solved on the basis of textual interpretation and combined with other considerations such as interest standard.Only when the interpretation of the expression of will is exhausted can the presumption of doubt rule be applied,and this presumption rule needs to distinguish between civil and commercial.The third chapter is the impact of addition of debtor on the three parties.This chapter is divided into three sections,which respectively discusses the impact on the rights and obligations of the third party,the creditor and the debtor.As for the impact of addition of debtor on the third party,although addition of debtor is very similar to guarantee,the provisions of guarantee should not be applied by analogy,and specific problems need to be analyzed.Firstly,it is the qualification restriction of the third party and the main form of the contract.Based on the protection of the third party,the provisions of guarantee should be applied by analogy.Secondly,it is the question of what defense the third party enjoys.Due to the heterogeneity of addition of debtor and substitution of debtor,the third party cannot apply the defense rule of article 553 of the civil code.When the analogy of article 701 of the civil code on the guarantor’s defense is applied to the third party,it should also be limited purposefully.In addition,the third party can apply the revocable defense right in article 702 of the civil code by analogy,and the countervailable defense right can not be applied by analogy.Thirdly,the third party’s right of limitation defense needs to be determined according to the situation,and the addition of debtor period similar to the guarantee period cannot be agreed in the addition of debtor,which is a violation of the mandatory provisions of limitation of action.Finally,the scope of liability of the third party should be limited to the time of addition.If there is an agreement on heavier responsibility,it is not a addition of debtor,but a new contract of autonomy of will.As for the impact of addition of debtor on creditors,the time when creditors exercise their right of claim depends on whether they directly participate in the agreement of addition of debtor,and creditors are prohibited from double repayment.In the case of the creditor’s double benefit,the return benefit should be returned first and then performed.If the order of performance cannot be distinguished,it should be returned to the third party.As for the impact of addition of debtor on the debtor,it is more reasonable to assign the notification obligation to the debtor first.Secondly,there is no need to allocate the right of objection to the debtor.The core reason is that the addition of debtor does not impair its interests.