On The Legal Validity Of The Mediation Agreement Of Paying The Debt By A Thing

The mediation agreement of paying the debt by a thing means that the parties make theagreement which would change the debt into the replaceable one through the mediation in theproceeding of the trial of some civil and commercial cases. And nowadays, the legal validityof this kind of agreement is not definitely ruled in Chinese code and the studies are few aboutit. Therefore, the disputes are there in the judicial practice. It gives the puzzles about theidentification of the legal validity of the mediation agreement of paying the debt by a thing.And this paper would like to give the comprehensive analysis on the legal validity of themediation agreement of paying the debt by a thing.The whole text is divided into six parts:Part one is to make us to ponder over the issue of the topic as following by the two cases:Is the mediation agreement of paying the debt by a thing has legal validity? The two casesshow the totally different points on the legal validity of the mediation agreement of paying thedebt by a thing in the judicial practice.Part two is to illustrate the meaning of paying the debt by a thing and the meditationagreement of paying the debt by a thing. And combining with the phenomenon of paying thedebt by a thing in practises, which is divided into datio in solutum and debt changes.Meanwhile through the comparing with the mediation agreement of paying the debt by a thingand the fluidity contract and also the alienation guarantee, and through the analysis of itsidentification and constructive requirements, helping to clarify the concept of it for thefurthering argument of the legal validity of the mediation agreement of paying the debt by athing.Part three is to analyse the two different points and its reasons about the validity of themediation agreement of paying the debt by a thing in the academia and practice. As thenegative point said, there are some disadvantages in the sort of agreement. However, thesedefects would not be inevitable and could be solved by the certain measures. We should notsay no to all the practices.Part four is to analyse the legal validity of the mediation agreement of paying the debt bya thing from the following aspects: the identification, the legislation and cases, the judicialpractice and the rights of the parties, which concluded that it has legal validity in theconditions without breaking the compulsive rules of laws, infringing on the interests of thestate and the communities and also the others, and breaking the real intention of the parties.Part five is to give ideas to clear the negative effects away about the mediationagreement of paying the debt by a thing as following: to remind the parties take account intothe values of the assets, to review strictly, to specification for it to realization way, to smoothrelief way, avoiding negative effect to further expand. Part six is to give the suggestions about legislation as following: the pacific rules ofpaying the debt by a thing should be given in the legislation which could be one of theconditions of halting the contract in Article91of the Contract Law. At the same time, thejudicial interpretation by Supreme People’s Court could give the more details about themeaning and the constructive requirements and the legal standards and also the procedure ofpaying the debt by a thing, which could be guidance of identification of the legal validity ofthe mediation agreement of paying the debt by a thing.