The Research On The Legal Validity Of Paying The Debt By A Thing

Paying the debt by a thing,as an alternative mode for the performance of debt is an agreement of replacing the original payment with another different kind of payment reached by the parties.It has been widely adopted in the civil judicial practice,which has the tendency of increasing and continuous expansion.Due the domestic law does not has the institutional stipulation of paying the debt by a thing expressly,so there is a great controversy between the academic and practical circles about it's legal property and validity,which could cause the definitely different judgments for the cases of same type in the judicial trials.Furthermore,the false lawsuit called paying the debt by a thing emerged endlessly.For the reasons above mentioned,which caused the confusion for the judgment in certain extent.There are different legal forms in the different cases for paying the debt by a thing,such as transfer guarantee,new debt repayment and fluidity contract.Therefore,it is necessary to study it separately.This article expounds the basic theory of paying the debt by a thing,affirms its independent value,and discusses the validity of paying the debt by a thing within the scope of the debt law,and puts forward some suggestions to improve the regulation of it's validity in our country.This article includes five chapters:The first chapter begins with two trial cases of paying the debt by a thing,which leads to the issue for the validity,defines the concept of paying the debt by a thing,expounds its elements and origin,and puts forward the main classification of its with the significance on the level of validity.The second chapter analyzes the legal character of paying the debt by a thing,including its basic attributes,the theories of its legal characterization,the nature of consensual or real contract,and explains the associations on the validity confirmation with above-mentioned legal characters.The third chapter makes a typed study on the validity of paying the debt by a thing through the analyses on the validity in different legal forms,such as transfer guarantee,new debt payment and fluidity contract.The fourth chapter discusses some special problems in the process of validity confirmation of paying the debt by a thing,and analyzes these special problems'influences on the validity confirmation.The fifth chapter expounds the value orientation on the regulation for the validity of paying the debt by a thing,and puts forward the perfect conception from the two aspects of the legislation and the judicature,and it is suggested that the system of authenticity review and relief afterwards should be established and improved in the practice of validity judging of paying the debt by a thing.