Discusstion On The Problems About Theory And Practice Of Indirect Payment

Indirect payment is that the debtor sign a new contract to pay old debts,the old debts are not fulfilled immediatelyexcept the parties make a clearly promise.The system is clearly defined in Germany and Taiwan of China,and has been acknowledged in Japan although the civil law does not provide.In China, indirect payment appeared only in the old civil law draft, but not in present law and the new civil law draft.This paper argues that the system is independent in the concept and can solve some problems at this stage in our Country.The first chapter analyses the characteristics of indirect payment, including the definition, conditions, effects and so on. Comparedto the similar systems, indirect payment is the most basic expression, the parties need further agreement to sign replacement of obligation system or datio in solutum.Their effectiveness is also different,the old debt and contract guarantees in indirect payment are not immediately eliminate. Indirect paymentis also different from traditional compromise contractand should not be considered as a type of compromise contract.The second chapter discusses the possibility to introduce indirect payment to China at this stage. When debtor sign debt notes topay old debts, theorists identified the contract as indirect payment, Japanese court once identified it as replacement of obligation system, which has changed to indirect payment, China should be no exception. The debtor burdena new debtto pay the old debt. The situation also mostly occur in the parties who reach a settlement on their own.There is no clearly defined in China. The paperidentified the contract as indirect payment when the parties reach a settlement on their own and only one of the parties burden debt. There will be more in line with the real meaning of the parties, and protect the interests of creditors and there is no conflict with our current laws.The last chapter analysesa specific case, instead of paying the debt by a thing,the debtor sign a assignment of creditor with the creditor to pay the debt,when the debtcan not be fullfilled, how the creditor protect his interests. The court identified the contract as third party’s liquidity on behalf of debtor. In the paper’s opinion, identified the contract as indirect payment is more appropriate and can resolve such problems at present stage.