Study On The Debt Payment In Goods

The final stage of civil procedure is civil judgment. Only when a civil judgment has beenimplemented effectively does the civil procedure come to a satisfactory end. Otherwise thecivil judgment can only be a dead letter no matter how perfect it is. As we all know, civilexecution in our country has been a problem for many years. In order to solve this problem,new measures and methods are invented continuously in judicial practice, and the method thatpaying in debt in goods is one of the solutions. However, the application of debt payment ingoods within the civil execution highlights there exist many problems in recent years due tothe lack of theoretical guidance. Moreover, the educational circles have not paid enoughattention to the debt payment in goods during the process of civil execution so that it fails toplay an active role. However clarification of issues related to the debt payment in goods canmake a significant contribution in theory and practice. Therefore the author believes that it isnecessary to study the debt payment in goods in the field of civil execution and other relevantissues.This paper consists of the introduction, the main body and the conclusion. And the mainbody includes five parts:Part I: the first part is about the background knowledge of debt payment in goods. Thispart gives a brief introduction to the debt payment in civil execution from five aspects--theorigin, definition and types of debt payment in goods, the character of debt payment in goodsand the range of the “goods” in “debt payment in goods”. The emphasis of the part is thecharacter of debt payment in goods. In response to the problem, the author further clarifies thestatus of debt payment in goods as an independent dispositive executive measure bycomparing it with the implementation of dispute settlement and fluidity contract on the basisof affirmation of the debt payment in goods as an independent alternative to monetary claims.Part II: the second part presents the theoretical background of debt payment in goods.This part explains the rationality of debt payment in goods as an independent dispositive executive measure from the dimensions of substantive law and procedural law. In thedimension of substantive law, the substantive law bases of debt payment in goods areillustrated with datio in solutum system and consensual set-off system of the civil law; in thedimension of procedural law, the thesis expounds that the issue of debt payment in goods incivil execution obtains theoretical supports from procedural law in the conversion theory ofcivil execution target.Part III: the third part studies the system of evaluating the goods then turning them overto the creditors in Taiwan. This part discusses the system of evaluating the goods then turningthem over to the creditors of Taiwan compulsory enforcement act in detail from theprospective of legislation, constituent elements, and applicable procedure, and finallycompares the system of evaluating the goods then turning them over to the creditors in Taiwanand the executive measure, the debt payment in goods, in mainland China, aiming at learningfrom experience of Taiwan’s system of evaluating the goods then turning them over to thecreditors to promote the measure, i.e. debt payment in goods in mainland China.Part IV: the fourth part focuses on the problem of debt payment in goods current practicein China. This part includes practical and theoretical problems in the implementation. Thepractical problems of implementation mainly include controversy in the goods price andquality, avoidance of implementation by paying the debt in goods, the necessity of salescontract in mandatory debt payment in property, and the treatment made when the personsubjected to the execution refuses to pay the goods for debt. In the theoretical problems ofimplementation, the most important one is whether the agreement of paying the debt in goodsor the court decision of paying the debt in goods can directly cause the change of theownership, because it concerns that to what degree the debt payment in goods should beimplemented in order to efficiently execute the civil cases. And anther two problems focus onthe parties’ avoidance of execution by paying the debt in goods, and whether the declarationof debt payment in goods made by the parties can be canceled. Both relate closely to thedifficulties encountered in the application of debt payment in goods. Therefore these problemsshould be attached more importance and settled. Part V: the fifth part proposes some considerations about the issue of debt payment ingoods. This part aims to offer some ideas and suggestions for the problems in judicial practicementioned in part four. The part mainly centers on the range of debt payment in goods,applicable condition, and improvement of other measures. The general ideas are to severelyrestrict the range and condition of debt payment in goods, and improve it by learning from thesystem of invalidating negotiable instrument after public summons for exhortation inGermany and prevalence study system in Japan; combine the system with treatment of theconcurrence of right of real things in civil laws to perfect the treatment of debt payment ingoods in the concurrence of right of real things, simplify the legal relationship of debtpayment in goods, strengthen its positive effects and weaken the negative effects. And in thisway, the execution of debt payment in goods can play an active role in solving the problemsin our civil execution.