Research On The Coexistence Of Debt Undertaking

The coexistence of debt undertaking is a form of debt transfer, specifically, is one kind of debt undertaking. It origins from the German civil law, inherited by the Japanese civil law and the Taiwan civil law. The third party as debt undertaker adding to the debt relationship, it can guarantee debt realized. Whether in our laws and regulations, or the judicial practice in China, we can't find a systematized explanation for the coexistence of debt undertaking. So the writer, in reference to the analysis of Germany's and Taiwan's civil law scholars, tries to build the theoretical framework of the coexistence of debt undertaking. And in search for the legislative suggestions of domestic scholars, the writer wants to find system consummation points. This article mainly discusses the coexistence of debt undertaking from the following three aspects.The first part of the article is the basic theory of the coexistence of debt undertaking. The writer gains the basic understanding on the coexistence of debt undertaking by analysis and comparing different definitions by civil law scholars from different countries and regions. The coexistence of debt undertaking means the third party join the original debt relationship, in accordance with law or the agreements of debt undertaking, and the third party and the original obligor must be responsible to the creditors. After making definition, the author analyses and discusses the basic characteristics, constitutions, legal nature about the coexistence of debt undertaking. The second part of the article summarized the legal effect of the coexistence of debt undertaking. It is a kind of tripartite legal relationship, including the creditor, the obligor and the debt undertaker. In addition, this paper mainly discusses legal consequences caused by the non-causative nature of the coexistence of debt undertaking. That is after the coexistence of debt undertaking taking effect, the debt undertaker can't against the creditor with the reasons against the obligor. The author also discusses the right of recovery against the creditor enjoyed by the debt undertaker and the right of defense against the creditor enjoyed by the debt undertaker.The third part of the article is based on"The Draft Civil Code of China Suggestion Draft","A Propositional Version with Legislative Reasons for Civil Code Draft of China", and"Green Civil Code Draft". The author researched the legislative research by the well-known scholar Professor Liang Huixing, Professor Wang Liming, Professor Xu Guodong. The article comprehensively analysis the legislative proposals by different scholars and put forward the suggestions about building the system of the coexistence of debt undertaking from different aspects.