On The Nature And Effects Of The Asset-backed Debt

Because our law does not clearly define the concept and meaning of the asset-backed debt in kind,it is unclear in the theory that the validity of the the asset-backed debt agreement is unclear.The different nature of the doctrine affects the judicial practice and the phenomenon of different judgments in the same case occurs frequently.This article takes the No.72 guiding-case issued by the Supreme People's Court as the entry point,analyzes the relationship between the two asset-backed debts agreements and the loan contract signed by the parties involved in the case,and concludes that there are three possible legal nature and its corresponding effects.In the first part,through the exploration of the attitude of the theory and the judicial practice on the asset-backed debt,the author points out confusion of the meaning and effect of agreements of the asset-backed debt.And with the rise of private lending,the focus on the agreements of expiation of debts in kind cannot adapt to reality.In the end,because the No.72 guiding-case issued by the Supreme Court has a typical guiding significance,this case is the entry point to explore the legal effect of agreements of expiation of debts in kind.The second part explains the meaning of expiation of debts in kind,and limits the scope of the article to the non-mandatory expiation of debts in kind and distinguishes the relationship between expiation of debts in kind and "datio in solutum"as legal acts and legal effects.Finally,it is pointed out that the "Commodity House Sale Contract" and "Commodity House Pre-sale Contract" in the No.72 guiding-case belong to agreements of expiation of debts in kind,but is not datio in solutum.The third part concludes that the two parties signed the "Commodity House Pre-sale Contract" to guarantee the performance of the "Loan Contract",which constitutes alienation guarantee.Alienation guarantee is a special guarantee system that guarantees the performance of debts by conditional transfer of the overall rights of the subject(especially ownership).If the debtor needs to return the collateral after the debt-for-goods agreement signed before the expiration of the debt performance period and the debtor is required to be settled,the asset-backed debt agreement may establish a guarantee.And considers that the guarantee may be invalid in violation of the prohibition of the liquid substance item and the flow escort item.However,both parties may perform the liquidation procedure after the expiration of the agreed debt performance period,and avoid violating the above provisions.The fourth part concludes that the signing of the "Commodity Sale Contract"constitutes a novation of obligation to the "Loan Contract",and the "Loan Contract"is eliminated due to the novation.Since the contract change stipulated in China's contract law does not include the novation,in the No.72 guiding-case,the Supreme Court determined that the "Commercial Housing Sale Contract" was valid because it conforms to the freedom of contract principle to changing the legal basis of the civil legal relationship.At the same time,it analyzes the third legal effect that agreements of expiation of debts in kind may have,the settlement of new debts.The novation of obligation,datio in solutum,and the settlement of new debts,are all stipulated in the Taiwan Civil Law and the distinction of which is to recognize the Contractus re of datio in solutum.In the case,the Supreme Court only recognizes the novation of obligation and the settlement of new debts and does not believe that datio in solutum is the legal effect of the agreement of expiation of debts in kind.The detailed analysis of the agreements of asset-backed debts in kind in the fifth part may constitute three legal character,namely,alienation guarantee,the settlement of new debt and the novation of obligation,and pointed out that the guiding significance of No.72 guiding-case is avoiding the identification of null and void contracts,which balance autonomy of will with public interest.