The Study On The Recognition Of The Debt Accession

The article starts from a civil loan case to discuss the issue of debt determination.In the first instance and the second instance of the case,due to the different opinions on the confirmation of “commitment”,constituting a guarantee or other legal relationships,the judges make different verdicts,which lead to different legal status of the parties and legal responsibilities.The author attempts to combine the relevant provisions of civil legislation and the principle of civil law in China to analyze whether the contents of the promises issued by the third party of the case have constituted the meaning of the debt join,which leads to the change of the legal status of the third party,so as to analyze the responsibility born by the third party.Starting from the problems raised by the case,the author talks about some problems identified by the debt join briefly,sums upthe case view and exploring the main problems in the practice of debt determination.The article consists of the following 4 parts:Part 1: Typical cases and questions are raised.This part briefly introduces the case and the focus of the dispute in this case,which leads to the author's thinking about the need for consideration.Part 2: Exploring of the theory of debt to join.Although the expression of academics on the concept of debt to join is different,but the nature is of no difference.Through the identification of its constituent elements and the process to be aware of the special problems to distinguish,and then to explore the issue of its responsibility.On the form of liability after the debt to join,the mainstream view is that the new and old debtor bear joint liability.I believe that the new and old debtor should bear no real joint liability,otherwise,it may harm the interests of the new debtor.Comparing the debt to join with several similar systems in our civil law system,so as to find out the debt to join with these systems in the theoretical differences.The contract of guarantee is subordinate,with the main contract attached.When the debtor fails to pay,the guarantor shall bear the obligation.After the debt to join,the new debtor is the same status with the common debtor,together with the original debtor to bear the first party's liability for liquidation.The third party in the implementation is not the main subject of the contract,with no responsibility of the debt.The responsibility of breaking contracts should still be borne by the debtor;while the new debtor of debt to join has the contract status,bearing the debtor's responsibility.The original debtor with liability exemption exit the original debt relationship after the new debtor to join;the new debtor joins and together with the original debtor to become common debtors.There are few countries in foreign law to have general provisions on debt to join,but there are still some similar systems to refer.Part 3: Judicial exploration of debt participation system in our country.China's current legal system does not clearly stipulate the system of debt accession,incompatible with the status of current judicial practice.Some local court has discussed inside to clear the concept of debt accession,and the Supreme People's Court in some occasions has also used the concept of debt accession.The Judicial practice has clarified three forms of debt to join,recognized that third party unilateral promises can also be established to join the debt.Through some typical cases of induction,sorting out the referee point of view,so as to sum up the identified points of debt accession.Part 4: Conclusion.This section summarizes the method of determining the accession of debt and uses it as a basis for analyzing whether the dispute case constitutes a debt to join.