Research On Coexistence Of Debt Undertaking

The coexistence of debt undertaking has not been stipulated in Chinese positive law, while this concept and its regulations which are acknowledged and described in theory have been applied in cases with a high level of frequency in practice. In theory, the coexistence of debt undertaking, together with undertaking of debt which exempts the liability of original debtor, are sub-concepts of debt undertaking. However, this article treat the understanding of coexistence of debt undertaking in theory and the arrangement of it in respect of concept system as a result of misunderstanding the nature of coexistence of debt understanding. So, the first problem which is put forward and needed to be solved in this article is the nature of coexistence of debt undertaking and its arrangement of position in concept system. The second problem needed to be solved in this article is that the requirements of the establishment of coexistence of debt undertaking and the validity of coexistence of debt undertaking, because of the misunderstanding in theory, it is necessary for us to rethink and re-describe the relevant details of the establishment and validity with respect to coexistence of debt undertaking. The third problem needed to be solved derives form the property of the institution of coexistence of debt undertaking and its function, because the effects of this institution are similar with those of other institutions, such as the institution of guarantee, the institution of contract performed by the third party, the institution of third party beneficiary contract, the institution of debt fulfilling and the institution of undertaking of debt which exempts the liability of original debtor, it is necessary to find the differences among those similar institutions and then to work out the standards for the discrimination. The fourth problem needed to be thought is the situation of application of coexistence of debt undertaking in practice, since the China positive law has not stipulated this institution, the courts have no written rules to in accordance with and then to judge cases in respect of coexistence of debt undertaking, as a result of that, the argumentation in judgment documents could not meet the requirements which a standard judgment document should meet, thus, strictly speaking, there are few qualified judgment documents in practice. We should study cases and find out the rules which the courts uses to judge, and based on which, we could think and work out a way to make the judgment documents have a qualified means to argumentation without written rules in China positive law. The last problem which should be solved in this article is the interpretation study on coexistence of debt undertaking, since we have already described the nature and arrangement of position in concept system of coexistence of debt undertaking, Article 84 of Contract Law of the People’s Republic of China shall not be used as claim basis for the parties, so there exists a legal loophole in respect of coexistence of debt undertaking and we need to work out a way to solve it for the purpose of making the judgment documents to be qualified as required by the law.This article has three chapters, except the introduction.In chapter one, this article focuses on the fundamental theories of coexistence of debt undertaking, which means the nature of coexistence of debt undertaking, its arrangement of position in concept system and requirements for its establishment. The article has the opinion that coexistence of debt undertaking shall not be treated as a kind of transfer of obligation, so it has a fundamental difference from undertaking of debt which exempts the liability of original debtor. This juristic act, has the same nature as act of liability, while the act of undertaking of debt which exempts the liability of original debtor is a kind of quasi act of disposition. Coexistence of debt undertaking result in the adding of debtor, and the person who commits this act is a new debtor to the creditor and are burdened a new debt which has the identity with the original debt burdened by the original debtor.There are four ways to establish the relationship of coexistence of debt undertaking, the ways are as follows: first way, the original debtor, the creditor and the third party enter into a contract; second way, the creditor and the third party enter into a contract; third way, the original debtor and the third party enter into a contract; fourth way, the third party commits an act of unilateral promise. The requirements for establishment in respect of those for ways are similar, that is to say, the act shall meet the basic requirements for basic juristic act, the debt shall not be exclusively to the original debtor so that the third party could become a new debtor, and the original debtor shall not be exempted its liability to the creditor. Also, coexistence of debt undertaking shall be established with conditions. Since a new debt derives from the establishment of coexistence of debt undertaking, the new debt shall not be exactly the same as the original debt, as long as the new debt has the identity with the original debt.The second chapter relates to the validity of coexistence of debt undertaking. The establishment of coexistence of debt undertaking could be made of four ways, so that there exists four legal structures after the establishment. The details of validity in respect of the four legal structures have something in common(as coexistence of debt undertaking), and each also has specific details(each has its particular requirements for establishment). The details in common are as follows: The status of the original debtor has not changed and he has to perform his obligations to the creditor; the third party burdens a new debt and become one of the new debtors, so that the creditor has a direct right to claim for fulfillment of the third party; the third party shall invoke the rights of defense which derive from the original debt relationship to withstand the claim from the creditor, thus, compared with the original debt relationship, coexistence of debt undertaking has no-cause character; because of the property of guarantee, the legal relationship derives from coexistence of debt undertaking is independent of the basic relationship between the third party and the original debtor, as a result, the third party shall not invoke the rights of defense derive from the basic relationship to withstand the claim form the creditor. The specific details in respect of validity are as follows: The beneficiary(the creditor and the original debtor) shall be entitled to refuse when the establishment of coexistence of debt undertaking is committed by unilateral promise; if coexistence of debt undertaking is established by a contract between the third party and the creditor, its establishment does not require the consent of the creditor, nonetheless, if the creditor does not declare his consent, he does not has the direct right to claim for fulfillment of the third party, so that coexistence of debt undertaking does not have influence on the creditor. In the circumstance of coexistence of debt undertaking, the rules of unreal joint and several liabilities shall be applied to the relationship between the third party and the creditor. Although coexistence of debt undertaking is similar with the institution of guarantee, the institution of contract performed by the third party, the institution of third party beneficiary contract, the institution of debt fulfilling and the institution of undertaking of debt which exempts the liability of original debtor, there are fundamental differences among them, and it is necessary to discriminate them in theory.The third chapter focuses on the interpretation study of coexistence of debt undertaking. Interpretation of law is the major work of the courts, and there is a high level of frequency in respect of the appearance of coexistence of debt undertaking in practice, but due to the legal loophole in China positive law, the courts has no rules to use in the judgment documents and the argumentation is too poor to be persuasive. There are four types of argumentation in judgment documents, which are theory-type, standard-type, pseudo-standard type and simple-type. The majority of the judgment documents are not qualified. However, we could find the application and understanding of coexistence of debt undertaking through the judgment documents, and the courts’ understanding of coexistence of debt undertaking is similar to the theory. Finally, this article provides a modified method to interpretation of law.In the last part, a summary of the understanding of the institution of coexistence of debt undertaking in this article has been made.