Study On Legal Issues Of Paying Off Debts By Housing Agreement

Paying off debts by housing is a type of paying debts with things.Because paying debts with houses has obvious advantages in solving economic disputes,it is widely used in our judicial practice.However,because the house is an anonymous contract in our country and there is no corresponding regulation in our country’s laws,there are controversies in judicial practice over the nature,effectiveness and performance of the house.This article sums up the Supreme People’s Court’s judgment cases concerning the use of houses to pay debts,summarizes the Supreme People’s Court’s judgment rules concerning the use of houses to pay debts,and provides legal practitioners with countermeasures and suggestions on the construction of risk identification and control procedures for the use of houses to pay debts in combination with the academic theory on the use of houses to pay debts.The introduction part mainly introduces the research background,literature review,foreign research status,research methods,innovations and deficiencies.In the case induction part of paying debts with houses,the judgment rules of the Supreme People’s Court on paying debts with houses are analyzed by means of charts,mainly through induction of the judgment cases of the Supreme People’s Court on paying debts with houses.In this part,the judgment rules of the Supreme People’s Court on paying debts with houses are classified according to time elements and object elements,which provides convenience for the study of cases of paying debts with houses.In the part of the nature of paying debts with houses,it introduces the main theories of the academic circle,namely " new debt repayment"," change of debt"," payment in lieu of things" and " appointment for payment in lieu of things".The " new debt repayment" and " change of debt" refer to the agreement of both parties to replace the original payment with other payments after the expiration of the debt performance period.The difference between the two mainly lies in whether to give creditors the option to pay off old debts.In the theory of " new debts paying off",when the debtor fails to pay off new debts,creditors have the right to demand to continue to pay off old debts.In the " change of debts",once the new debts are confirmed by both parties,the old debts will be eliminated.The theory of " paying off debts in lieu of things" is also the expiration of the debt performance period.The two parties have agreed to replace the original payment with other payments.The difference between the theory and " paying off new debts" and " changing debts" lies in the fact that the academic circles believe that " paying off debts in lieu of things" is practical.This theory is inconsistent with China’s judicial practice and is not conducive to improving the efficiency of judicial practice.The theory of " prepayment appointment" refers to the agreement between the two parties before the expiration of the debt performance period that when the debtor fails to pay off the debt when due,the debtor will replace the original payment with other payments.The situation of this theory involves that China’s ban on mortgage transfer violates the existing laws and regulations of China.The validity of the agreement is one of the focuses of this article.After summing up the Supreme People’s Court’s judgment cases and learning the academic viewpoint of paying debts with houses,the author believes that the agreement on paying debts with houses after the expiration of the period of debt performance is valid and the agreement on paying debts with houses before the expiration of the period of debt performance is invalid,provided that the real intention of both parties is to pay debts with houses,there is a basic creditor-debtor relationship and there is no violation of China’s laws and regulations.Under the circumstance that the object of paying debts with houses has defects in rights,the agreement of paying debts with houses is generally considered to be valid,but the small-property houses developed by developers using collective construction land should be deemed invalid.Homestead houses that are not members of this collective organization as creditors to pay debts shall be deemed invalid;If the real estate on the allocated land is used to repay the debt with the real estate,the debt with the real estate shall be deemed invalid without the approval of the government with the approval right.The performance part of paying debts with houses is also one of the key parts of this article.By summarizing the judgment cases of the Supreme People’s Court on paying debts with houses,the author thinks that paying debts with houses only produces general creditor’s rights and has no priority over other creditor’s rights.However,if the houses obtained by paying debts with houses conform to the provisions of Articles 28 and 29 of the Supreme People’s Court on Several Issues Concerning People’s Court Handling Execution Objections and Reconsideration Cases and Article 17 of the Provisions of the Supreme People’s Court on Seizure,Seizure and Freezing of Property in Civil Execution of People’s Courts,compulsory measures of the People’s Court can be resisted.At the same time,the agreement signed by the two parties on their own does not directly produce the effect of real right change,but if the two parties agree,the people’s court will directly produce the effect of real right change after making the ruling on the payment of debts by housing.The last part of the countermeasures and suggestions is to provide countermeasures and suggestions for legal practitioners to build a risk identification and control program for housing debt repayment,which mainly includes three parts: verifying whether the underlying creditor’s rights and debts are true and effective,verifying the signing time of the housing debt repayment agreement,verifying the housing situation in housing debt repayment and building risk assessment standards.