The Type Structure Of The "Agreement On Repossessed"

In recent years,some debtors and creditors in the loan contract signed the "commercial housing sales" to guarantee the loan contract,which is called the "sale guarantee" by some people.But more people put it under the formulation "agreement on repossessed" to discuss its normative constitution and legal effect.In fact,the practitioners and scholars have always used this formulation in experience level,which includes a variety of referents,such as the datio in solutum(Leistung an Erfüllungs statt),fulfillment in lieu of(Leistung erfüllungshalber),Sicherungsübereinigung,novation and the so-called "sale guarantee".For a time,how to accurately understand and qualify the "agreement on repossessed" and then provide benefit to legal practice has become a hot topic.However,on the previous literature,many scholars have adopted a "comprehensive method" from the analysis.First,they set up a definition of "agreement on repossessed",and then discuss various legal phenomena in practice within this abstract and general definition.This article focuses on the different objects of the "agreement on repossessed" in the context of civil procedural law and the context of civil substantive law,which try to avoid the shortcoming of the above-mentioned method.Thereby one can reveal the differences between the objects of the "agreement on repossessed" and finally construct a type system thereof,which in order to contribute to the theory and practice.In the context of the civil procedure law,"agreement on repossessed" has different meanings.Sometimes it refers to a kind of implementation of the implementation measures for the non money property;sometimes it refers to a debt contract as "executive reconciliation" in the implementation process.The former is a kind of civil enforcement measures,while the latter has the nature both of substantive law and procedural law.Beyond that,in order to prevent the parties to use the "agreement on repossessed" to make false litigation,some local courts strictly limit the proceedings asking the court to issue the mediation letter for this agreement.In the context of civil substance law,the formulations of "agreement on repossessed" refer to a kind of agreement that using an alternative to discharge the original debt.All kinds of related conventions in practice have a common character,that is to say,the parties agree that an alternative can discharge the original debt.Based on this,the "agreement on repossessed" can be divided in two groups,the criterion is,whether the parties should first charge the "disposal-settlement agreement" and then eliminate the original debt.Thereby the "agreement on repossessed" can be divided as "without Disposal" and "with Disposal".The former includes the datio in solutum,novation and the exercise of the right to substitute.The latter includes fulfillment in lieu of,Sicherungsübereinigung,flow mortgage and the so-called "abstention agreement".The so-called "sale guarantee" is also an empirical formulation,that is to say,it has no independent normative constitution and legal effect.It should be interpreted under the specific circumstances to find the true will of the parties.In fact,the "sale guarantee" sometimes refers to the "abstention agreement",and sometimes the "novation under condition".The division into "without Disposal" and "with Disposal" is beneficial to identify whether the debtor should provide an alternative,and also helps to qualify the specific way of discharge of debt.In contrast,when the "agreement on repossessed" is divided into "Realvertrag" and "Consesualvertrag",it only helps to find out the binding of the pure consent of the parties,and cannot include the exercise of the right to substitute,which means a loopholes in logic.However,the division of "in reconciliation" and "outside reconciliation" can also contribute to the understanding and application of law,but it still cannot replace the classification of "without Disposal" and "with Disposal",and can only become a useful supplement to this classification.Finally,we should focus on how to identify the real meaning of the parties in the "agreement on repossessed" in practice.This requires the interpretation of the declaration of the will of parties.Although the 364 th article of the German civil code provides a useful inspiration,it cannot solve all the problems.To find out and then qualify the different kinds of "agreement on repossessed",we can adopt two steps in the interpretation of expression of intention,namely first examine whether the parties will discharge the debt with the alternative directly,and when the answer is no,then the changing of debt and novation are ruled out,and we should further investigate the possibility of other kinds of agreements.