An Analysis Of The Legal Attribute And Effect Of The Paying-a-debt-in-kind

In practice,as a spontaneous transaction behavior,the paying-a-debt-in-kind involves more related complex issues.Especially in recent years,there have been some cases of “different judgments in the same case” in the courts and even the Supreme People’s Court,which has not only brought great troubles to judicial practice,but also caused concern and heated discussion in academic circles.Throughout the relevant cases,the phenomenon of “different judgments in the same case” arises because in the absence of relevant legal rules,practice is mostly dealt with by theory,while different theories have different standpoints and value orientations,resulting in different judgment logic.On the basis of the relevant judicial cases and the problems detected in the cases,this thesis analyzes the legal attribute and effect of the paying-a-debt-in-kind.This thesis consists of five parts,arranged as follows:Part One selects five typical cases,concludes and summarizes some controversial issues according to the judgment results of the cases.From the judgments of the cases,the departments for practice positions the paying-a-debt-in-kind as the concepts of fluidity contract,transfer guarantee,datio in solutum,novation of obligation and new debt liquidation.Part Two mainly analyses the concept and legal attributes of the act of the paying-a-debt-in-kind.As far as the concept of the paying-a-debt-in-kind is concerned,this thesis defines the concept of the paying-a-debt-in-kind in a broader sense on the basis of integrating the academia’s understandings of the paying-a-debt-in-kind and combining with the parties’ purpose and manner of behavior.In addition,starting from the basic theory of legal acts and combining with some current theoretical viewpoints,this thesis also analyzes and evaluates the basic legal attributes of the paying-a-debt-in-kind.novation of obligation and new debt liquidationPart Three and Part Four mainly elaborates the legal effect of different forms of the paying-a-debt-in-kind in real terms,combining with the cases of the paying-a-debt-in-kind in real terms.Based on the criterion of whether to transfer the ownership of the subject matter ahead of time,Part Three divides the pre-expiration paying-a-debt-in-kind into two forms,i.e.the one with stopping conditions and the one with transfer guarantee,and analyses them separately according to the basic theory of fluidity contract and transfer guarantee.Based on the relationship between the new debt and the old one,Part Four divides the matured paying-a-debt-in-kind into two forms: novation of obligation and new debt liquidation,and analyses them separately according to the basic theory of the relevant civil law system.Part Five mainly combines with the existing laws and regulations of our country to analyze the specific application of law and how to review and relieve the paying-a-debt-in-kind.This thesis holds that the paying-a-debt-in-kind is not a loophole of law,which can be analyzed by reference or analogy under the existing legal rules.