Study On The Contract Of Pay A Debt In Kind

Pay a debt in kind as a way of paying debts from ancient times,it is known to all that there is no different understanding.As the legal form of the act of recompense,the nature of the contract is quite different.In the last few years,with the substantial growth of social economy in China,in order to ensure that the creditor's rights can be cleared and collected,the currency is no longer the only way to pay off debts.A large number of words such as "repaying debts with shares" appear frequently in the sight of people,and disputes caused by debt-for-things contracts have also shown a sharp increase in recent years.Judging from the current law in force in our country,there is no clear provision for the contract of recompense in rem,which can only be classified as an unnamed contract.That is,the application of laws can only be carried out through "the provisions of the application of general principles" or "by reference to sub-rules or the most similar provisions of other laws",and the lack of legislation will inevitably cause obstacles to the application of the law.The nature of the existing doctrine concerning the repayment of debts in rem is bound to cause obstacles to the application of the law.The establishment and effect,the relationship between the new debt and the old debt,the ways of remedy for breach of contract,and so on,are controversial,and there is no unified conclusion.In practice,courts at all levels hold all kinds of opinions of the judgments in endlessly,contradictory,leading to the parties to the contract because they do not understand their rights.There is no uniform standard for the judge in the process of adjudication,and the handling of the case is very difficult.It can be said that the settlement of disputes arising from the contract in rem is not only lack of legal support,but also lack of in-depth theoretical research.In reality,according to the difference of the time of conclusion of the contract,the contract can be divided into the contract signed before the expiration of the period of debt performance and the contract signed after the expiration of the term of performance of the debt,and the two contracts are of the nature of the contract.Contract effectiveness,legal provisions and other aspects of the existence of great differences,can not be generalized.At the same time,the author thinks that the contract signed before the expiration of the time limit of debt performance should be subject to the invalid rule of flow clause,so the research direction of this paper is limited to the contract signed after the expiration of the time limit of debt performance.Since recompense is not a legal term or a traditional doctrine,it is a method of debt repayment that people come up with in order to settle their daily debts.Therefore,in practice,there are various theories about the nature of the contract in rem,and the judgment of the validity of the contract in rem is not uniform.This article mainly uses the contract research way to distinguish and analyze the contract for debt in rem,from the aspects of the nature of the contract,the formation and effective requirements of the contract,the delivery in the contract performance,the limitation of the old debt,the value of the debt and the relief of breach of contract,etc.This paper analyzes all kinds of problems arising in the contract of recompense in rem.First of all,the most common theory of the property of the debt contract after the expiration of the debt performance period is as follows:subrogation,debt modification and new debt settlement.However,these three theories are either not clearly stipulated in Chinese law or are not mentioned whether they belong to the nature of debt-for-rem contract.This paper compares the above three theories by enumerating the elements and nature of the contract are compared with the nature of the contract in rem,and the principle of autonomy of the meaning of the contract is combined with the principle of autonomy of the meaning of the contract.It is concluded that the nature of the contract should be based on respect for the autonomy of the parties and the nature of the new debt.After determining the nature of the contract,by comparing the advantages and disadvantages of the contract between the contract and the practice contract,the paper discusses that the contract of recompense in rem should be the contract of the nature of the contract.In the stage of contract performance,by expounding the delivery problem of different forms of debt offeror,the criterion that the creditor actually obtains the benefit of debt repayment is established as the completion of performance.At the same time,in order to safeguard the principle of fairness of the contract and protect the interests of the creditors,Point of view,should be given priority to perform new debt,both sides can not choose the old debt to perform.As for the problem of the limitation calculation of old and old debts when new debts cannot be fulfilled,the author adopts the viewpoint of"interruption theory",and concludes that after the signing of the contract of recompense for debts,it should be regarded as the interruption of the limitation of action for old debts,which is more conducive to the protection of creditor's rights.In the end,the author enumerates and analyzes the breach of contract in rem and the means of relief.At the same time,the author clarifies that the creditor enjoys the right of unilateral discharge in the event of debtor's breach of contract,and after the dissolution of the contract,both parties return to the discharge of the old relationship between creditor's rights and debts.This paper combs the multiple problems encountered in the practice of the contract for redeeming debt with goods,combining with the current social and economic development trend,trading habits,parties' agreement,and so on,on the nature,establishment,performance and so on of the contract of redeeming debt with goods,etc.This paper tries to put forward the corresponding solutions to the controversial issues.This paper tries to find out and form the framework of the contract in rem which conforms to the law of transaction and has the basis of law,and puts forward some reasonable suggestions on the legal regulation of the contract of rem for debt.On the one hand,it can provide reference basis for both parties to sign and fulfill the contract of recompense in rem,so that both parties can make clear their rights and obligations,and guarantee the contract.To protect the autonomy of the parties,to promote the efficiency of transaction and to reduce disputes.Meanwhile,it could help the court to resolve disputes,forms a reasonable and unified viewpoint,provides the legal basis for the final judgment of the case and the resolution of the conflict,as far as possible to convince the parties,and finally solve the actual problem.