Study On Debt Substitution Performance

The content of debt substitution performance stipulated in Article 581 of the Civil Code is to regulate the conditions for the application of the nonbreaching party,and then determine the cost of substitution performance.Different from the Contract Law and the Civil Procedure Law on the provision of alternative performance or substitution of debt in specific circumstances,Article 581 gives the non-breaching party the general right to substitute debt performance in the substantive law,and this article improves the liability system for breach of contract in China.What is that the current substantive law of China does not detail the regulation and interpretation of the substitution of the debt,neither the performance subject nor the exercise conditions are clearly defined,resulting in the burden of the replacement of the debt cannot be clear.Therefore,this paper further explains the conditions for the application of the nonbreaching party,in order to clarify and solve the problems existing in the application of the provisions,and to provide reference for the clarity of the alternative performance fee and the application of the provisions in judicial practice.In this thesis,from the basic problems of debt alternative performance,distinguishing the debt alternative performance and approximate concept of different,clear debt alternative performance of the right of default damages claim properties,and the association between the claim and other right to comb,at the same time the domain outside and judicial practice summarizes the problems existing in the application of the application.As far as the subject of performance is concerned,in addition to the third party subject explicitly stipulated by law,the creditor can also be the subject to replace the performance of the debt,but the creditor should replace the debt,without professional knowledge and experience and easy to perform,and the performance of the creditor will not aggravate the debtor’s debt.But the remedial behavior of the debtor cannot be regarded as the application of the provisions of debt substitution performance.As for the selection of the third party subject,the selection standards should be clear and go through reasonable procedures.The selection mechanism of the subject of debt substitution performance should establish a system with the third party as the main and the creditors as the auxiliary.As far as the conditions of exercise are concerned,the applicable premise of the alternative performance of the debt is not conditional on the termination of the contract and the court judgment,but requires the creditor to set a reasonable grace period for the debtor before applying the provisions.Secondly,the exercise of this provision requires the debtor to have a form of default.Generally speaking,the creditor can apply the provision to subjective failure,delayed performance to the degree of fundamental default,incomplete performance and expected default of the debtor.Moreover for the nature of the debt,to simply as the payment of the broad type of debt,to express behavior for the underlying debt,behavior factors occupy an important position of mixed payment is an alternative to the performance of the debt,need to trust and assist the debt and not as the underlying debt is irreplaceable to perform the debt.Debt replacement of the performance of the fees,the determination of reasonable costs need to consider the replacement of the search,the creditor for the debtor set grace period is rationality and creditors conduct subjective integrity factors,and can through the public intellectual information,appraisal institutions,actual transaction costs for debt substitution performance and the cost of the original contract price,comprehensive clear debt alternative perform fees.