The Empirical Study Of Paying The Debt By A Thing

Paying the debt by a thing is practically common.But because of unclear concept and lack of institution,most researches in our country in paying the debt by a thing are formed by drawing foreign lessons about such systems as the Datio in solutum.Correspondingly,there are many differences in judging in such cases by the courts at all levels,which is mainly reflected in the debate between the practical nature and the consensual nature of paying off a debt by the thing.However,the debate over the judgements of paying off a debt by the thing in our country is essentially not the case.Under the premise of the contract with the consensual nature,the dispute of the judgements is finally manifested into how to deal with the relations between paying off a debt by the thing and the fundamental legal nexus.Therefore,from the perspective of the judgements,we should find ideas using methods which are identified by the facts and legally applicable,on a basis of the existing legal system in our country.Since the issue of paying off a debt by the thing is mainly studied with a concept or individual case analysis in domestic,this article responses to the disputed judgements in such case by combining the empirical analysis of paying off a debt by the thing and the theoretical listing.The main structure of this thesis is as follow:The part of introduction primarily presents the research background and significance,and emphasizes the research ideas and methods.The first part is primarily empirical analysis of the judgements on paying the debt by a thing,aiming to analyze data and put forward the issue.The empirical analysis conducts typological analysis to show the different manifestation of paying the debt by a thing under the different standards,which includes 55 contracts and 89 effective judgment documents in 52 cases of paying the debt by a thing.1.The empirical analysis about the application of different theories proves that the Datio in solutum and the ordinary consensual contract said have substantial influence on these judgements.Therefore the whole typological analysis should concentrate on the application of these two theories.2.The conventional classification reflects the conflict of two main theories in juridical practice.But because of the concentrated distribution of data,this standard can not effectively show the characteristics of judgements.3.The classification of fundamental legal nexus further proves that the conflict in application of two theories universally exist in all kinds of cases,and the partial statistics present the benefits measurement behind these judgements.4.When we combine the juridical consequences and claims,however,the quantitative average in application of two theories show obvious difference in juridical trend and consequences,which means that the conflict between the practical nature and the consensual nature is not the prime factor of these adjudications.5.When we combine the content of judgements and claims,it is clear to find the controversial focus between court and parties.The second part is primarily an explanation on the theory of the judgement on paying the debt by a thing,aiming to analyze its advantages and disadvantages and lead to the following content as summing up the above.Firstly,the empirical analysis in former part prove that the concept of paying the debt by a thing includes two main elements.According to different content of judgement,all theories can be divided into main juridical theories and other juridical theories.Secondly,evaluate the pros and cons of main juridical theories(the Datio in solutum and the ordinary consensual contract said),insist on analyzing the judgements from the angle of ordinary consensual contract said,and concentrate on the solution to the relationship between paying off a debt by the thing and the fundamental legal nexus.Thirdly,in order to summarize some positive factors beneficial for judgements,evaluate the pros and cons of other juridical theories.The third part is primarily the suggestions for coping with main practical problems of the judgements on paying the debt by a thing,aiming to summarize the disputes and solve the problems.Firstly,these disputes can be summarized from different angels,including fundamental dispute,practical nature dispute and consensual nature dispute.And on the basis of the ordinary consensual contract said,these problems can be solved from two aspects:the content of these contracts and the relationship between paying off a debt by the thing and the fundamental legal nexus.Secondly,according to the content of these contracts,research the establishment and validity of Paying the debt by a thing,aiming to explore the real meaning between parties.Thirdly,the problems in these cases primarily focuses on the relationship between paying off a debt by the thing and the fundamental legal nexus.Therefore,it is necessary to evaluate the judgements and put forward my own opinions,summarizing some judicial experience.