Research On The Recognition And Application Of The Assumption Of Coexisting Debt

The Article 552 of the Civil Code of the People’s Republic of China(hereinafter referred to as the "Civil Code")has formally established the system regarding the assumption of coexisting debt,in which the circumstances for it to hold and its legal effect are expressly specified,thus establishing a good legal basis for the system and benefiting the law application.However,there are also some issues to be addressed.It is particularly difficult to have an effective distinction between the assumption of coexisting debt and guarantee.The distinction between the two has long been a source of concern in judicial practice.The Article stipulates that any third party,who is added to the debt,shall assume joint and several obligations with the original debtor.This system positioning is appropriate.However,since the contract relating to the assumption of coexisting debt has the character of being independent,and its function is for the realization of the secured claim,then all the provisions relating to joint and several obligations are not applicable.The third party has particularities in such aspects including the pursuing of recovery,raising a plea,etc.The assumption of coexisting debt and the exemption liability of debt assumption all belong to the debt assumption,but further discussion is required in order to identify the common and specific features of the two.Therefore,in this paper,it is intended to give thought to a number of issues,including the identification of the assumption of coexisting debt,the differentiation of the guarantee of the same,and the application of laws to such matters.Eventually,by integration,the key elements for the assumption of coexisting debt to hold and to take effect,the method to differentiate it from "guarantee" and the rules concerning specific law application are obtained.It is from such perspectives that the discussion in this paper begins,namely the positioning of the system and the guarantee function relating to the assumption of coexisting debt.First of all,starting from the constitutive elements and the types for the assumption of coexisting debt,this paper discusses the legal status concerning the consent of the creditor,and also makes a distinction between the rights to claim entitled respectively to creditors and original debtors of various types.Secondly,aiming at address the difficulty in distinguishing between the assumption of coexisting debt and guarantee,which is prevalent in judicial practice,a large number of cases are searched and reviewed in order to establish standards for distinguishing between these two concepts either in theory or in judicial practice,the connotation and boundary of each standard is expressly specified,and then the order for the application of different standards are confirmed.Regarding the absence of rules on the assumption of coexisting debt,the possibility and limitations of the application of "guarantee rules" by analogy are discussed.In the end,through analysis,it is concluded that the legal effect of the assumption of coexisting debt is to be held joint and several liable,which is considered an appropriate positioning,although the third party does not have the right to recover from the original debtor under the statutory provisions.Moreover,based on an analysis of the relation between the assumption of coexisting debts and the transfer of liabilities,it is evident that the common rules for the transfer of liabilities cannot be applied to the assumption of coexisting debt.