On The Judicial Determination Of Repaying Debts With Objects

Paying debt in kind refers to the legal act of fulfilling the original debt by signing and fulfilling the contract between the parties to realize the replacement of the original payment with other kind of payment.There are two common types of paying debt in kind.One is the debt-servicing-contract type,which means the two parties will sign a debt-servicing contract and agree to "pay the debt with the debt-servicing object to meet the original debt" after the expiration of the debt performance period.The other one is the sale-and-purchase-contract type,which means that before the expiration of the debt performance period,the two parties sign a sale and purchase contract and agree that "if the debt is not fulfilled at the expiration date,the sale and purchase contract shall be fulfilled".The former type of paying debt in kind has the function of substituting for the settlement of debts.It is the change of the content of payment made by both parties in accordance with the principle of freedom of contract.The latter type has the function of guaranty,so it's usually called sale-and-purchase type of guarantee.But it can not constitute a guaranty relationship.It can only be said that it has a certain role in guaranteeing the realization of creditor's rights.As for the legal nature of paying debt in kind,the focus of dispute in the case of the debt-servicing-contract type is mainly on the dispute between the "real contract theory" and the "consensual contract theory",as well as the relationship between new debt and old debt in the case of "consensual contract theory".For the dispute,if there are relevant items in the contract,the two parties should follow their agreement.If there is no agreement or agreement is not clear,the debt-servicing contract should be recognized as a consensual contract,and the old debt will coexist after the establishment of the new debt.So,datio in solutum,payment with new debt and the change of the debt are all types that may be formed of the debt-servicing contract.In the case of the sale-and-purchase-contract type,the focus of dispute is mainly on the effectiveness of the sale and purchase contract.For the dispute,the sale and purchase contract does not constitute an untrue representation,a fluidity item,transfer guarantee or post-transfer guarantee.The theory of the sale and purchase contract attaching dissolution condition,the conditional datio in solutum agreement and the change of the debt are not reasonable explanations.The two parties establish a buyer-seller relationship according to the sale and purchase contract.The agreement that "if the loan is not fulfilled at the expiration date,the sale and purchase contract shall be fulfilled" attaches a go-into-effect condition to the sale and purchase contract.The mutual offsetting of the debts of money between the two parties in the loan relationship and the buyer-seller relationship is a reasonable way to explain this kind of case.As for the legal effect of paying debt in kind,in the case of the debt-servicing-contract type,payment with new debt is its general situation.Before the maturity of the new debt,the creditor shall not request the debtor to perform the old debt.After the maturity of the new debt,the creditor shall have the option to perform the new and old debt.When the main payment obligation of the new debt is actually fulfilled,the old debt will be extinguished due to liquidation.If the old debt is replaced by the transfer of the ownership,the statutory publicity requirements shall be fulfilled according to the rules of change of property rights.Whether the debtor bears the liability of defective guarantee and whether the bona fide acquisition system is applicable depends on the nature of the old debt.In the type of datio in solutum,the creditor has to request to perform the original debt,and the debtor has the right to choose the performance of the old and new debts.In the type of the change of the debt,the creditor has to request the performance of the new debt,and the liability of defective guarantee depends on the nature of the new debt.In the case of the sale-and-purchase-contract type,the way of dealing with Article 24 of the Judicial Interpretation of Non-governmental Lending is inappropriate.If the debts are not fulfilled at maturity,the creditors shall have the right to choose the performance of the loan contract and the sale and purchase contract.If the creditors request the performance of the sale and purchase contract,the court shall simultaneously hear the loan relationship and the buyer-seller relationship.If the validity of the sale and purchase contract is confirmed,and after the principal and interest of the legitimate loan owed by the debtor are offset with the value payable by the creditor,the obligation of the creditor to pay the price can be determined to have been fulfilled,the litigation request shall be supported.