An Empirical Study Of The Debt-in-Kind Agreement

In our country’s actual life,the phenomenon of paying debts in kind occurs from time to time.However,there is no specific stipulation on the nature and effectiveness of debt in kind in China’s current laws,which only involves the definition of debt in kind in department rules,industry norms,judicial interpretation and summary of local court’s trial.Due to the lack of clear legal provisions on debt in rem,the court in the trial of similar cases often give very different results.In December 2016,the Supreme People’s Court issued "Guiding Case No.72 of the Supreme People’s Court".Although the guiding case prescribes the nature of the agreement to some extent,it can be found that the issue has not been satisfactorily solved by sorting out and summarizing the judicial practice cases of the agreement since 2017.In view of this,through the empirical analysis of the debt-in-kind agreement,this paper explores the main factors affecting the different results of the referee,summarizes the focus of the dispute and tries to provide solutions for the dispute settlement.In addition to the introduction and conclusion,this paper is divided into three parts.The first part mainly introduces the concept,nature and type of the debt in rem agreement,and raises the question that the courts give completely opposite judgment results according to different reasons when hearing the debt in rem case.So what are the main factors that affect the different results of the referee?The second part is mainly about the empirical analysis of the judgment of the debt-in-kind agreement,aiming at analyzing the influencing factors and finding the focus of controversy.The empirical study of this part aims at the classification analysis of 60 effective judgment documents in 55 cases of debt-in-property in three provinces of central China(Hubei,Hunan and Jiangxi),which reflects the different judgment patterns of debt-in-property agreement under different standards.1.The main purpose of the court’s decision is based on two different kinds of general theories,including the theory of promissory contract and the theory of practical contract.The categorization should focus on the application of these two theories.Through detailed analysis,it is found that the same court treats different cases of the nature of the debt in rem agreement differently,which may be related to the legal basis of the agreement.2.The classification of the relationship based on law further proves that the disputes between the two theories generally exist in various types of cases.The relationship based on law affects the nature of the agreement,and shows the measurement of interests behind the court’s trial of the case.3.The analysis of general principles and basic legal relations cannot fully reflect the disputes between the court judgment result and the litigant’s claim,so the litigant’s claim and the court judgment result can also be classified.4.Analyze the types of agreements,sort out the court’s determination of the validity of different types of debt in rem agreements,and summarize the existing validity disputes.The third part is a brief summary of the disputes in the judgment of the debt in rem agreement.We should respond to the disputes in practice with three clues: the establishment of the agreement in kind,the nature of the agreement in kind and the validity of the agreement in kind.In view of the court’s judgment experience puts forward own suggestion,summarizes the judgment train of thought.