Judicial Application Of The Renewal Of Debts In Repayment Of Debts

Debt renewal system has already appeared in Roman law.Its original purpose of legislation was to better transfer creditor's rights and debts,which is one of the important reasons for the elimination of debts.However,"debt renewal" is not a strict legal term,and China's "Contract Law" does not specify this,which makes it impossible to rely on in judicial practice and can only rely on the judge's experience for discretion,resulting in different judgments in the same case The emergence of phenomena has seriously hindered the play of the advantages of the debt renewal system and the stable development of the financing market.The Guiding Case No.72 of the Supreme People's Court is a representative case of debt renewal,which is an important form of debt-for-debt.Its trial ideas and results have great guiding significance for judicial practice.The author uses the non-litigation case network(1).After conducting a case search,it was found that since the publication of Guiding Case No.72 in December 2016,as of December 20,2019,174 cases had referred to or referred to the judgment rules of the case.Among them,about90%(157)are related to "guarantee",about 43%(75)are related to "confirmation of contractual relationship" and "confirmation of contract validity",and about 63%(109)are related to "liquidation for breach of contract"),About11%(19)involved in "delivery" and "handover",about 17%(29)involved in "priority compensation right",and up to 23% involved in "suits for execution of objections"(39),nearly half of the cases entered the second instance procedure.The author will be divided into the following four parts to elaborate:The first chapter is mainly to introduce the research case of this article-Guiding Case No.72 of the Supreme People's Court.According to the court's point of view in this case,it was learned that the guiding case chose debt renewal as the referee path.Therefore,the two main controversial focuses of this case were sorted out and analyzed,which was conducive to a better analysis of the judicial application of the debt repayment in the case of debt for debt.Prepare for the following.In Chapter Two,the author believes that it is necessary to further understand the debt renewal system,especially its recognition criteria.Therefore,after referring to the academic viewpoint and judicial practice,a more in-depth analysis of the constitutional requirements and system value of the debt renewal system was conducted,in order to make its recognition criteria clearer and better serve the financing market.Simultaneously,the author also gave a more detailed analysis and introduction of its existing predicament,emphasizing that improving the debt renewal system is particularly important for its legislation and justice.Chapter 3 takes the main point of the judgment in the guiding case No.72 as the starting point,"Both parties to the loan contract,after consultation,terminate the loan contract relationship and establish a commercial house sales contract relationship.According to the purpose of the commercial house sales contract,it does not belong to the" The Supreme People's Court's Provisions on Several Issues Concerning the Application of Laws in the Trial of Private Lending Cases,"Article 24 as" Guarantee of Private Lending Contracts "" analyzes the legal nature of the "Commercial Housing Sales Contract" involved in the case.Regardless of whether it is in academia or the judiciary,the renewal of debts often appears to be blurred with other institutional boundaries,and is even mixed.In order to better analyze the nature of the debtrenewal contract involved in the case and allow debt renewal to be more accurately applied in judicial practice,the author will compare and analyze the debt negotiation renewal contract that expires in advance,the liquidity contract,and the sales guarantee A theoretical analysis of the renewal of the contract after the expiration of the debt performance period,the settlement of surrogates,and the settlement of new debts.Finally,it is demonstrated in conjunction with this guide case in order to have a more accurate and profound understanding.The fourth chapter is mainly based on another judgment,"In the absence of the circumstances provided for in Article 52 of the" Contract Law of the People's Republic of China,the contract for the sale of commercial housing has legal effect "," the debt owing to high interest The amount of money cannot be confirmed in accordance with the law,so it should be considered that Tang Long and other four people,as buyers of the house,have not paid in full the contracted purchase price of the house "as an entry point,and determine the legal validity of the debt renewal contract.The author will separately explain the validity,invalidity and revocable status of the debt renewal contract,in order to better analyze the legal effect of the full performance of the renewal contract,the defective performance of the property and the defective performance of the right.