On Debt-for-substance

The supreme people’s court issued the 15 th batch of guide case no.72 in the case study and the subsequent trial "case no.974(2017)people case is very similar,but the referee with a very different outcome,instructional cases accepted the commodity house sales contract,establish the legal relationship change,said the no.974 cases identified as not bonded.In the first part of this paper,the author takes the comparison of the two cases as the breakthrough point and introduces the debt-for-substance.From the point of view of the traditional civil law,there is no basis for debt in kind,but it is very similar to datio in solutum in the traditional civil law,leading many scholars to think that debt in kind is datio in solutum.However,datio in solutum in the traditional civil law emphasizes the materiality,which leads to the lack of a unified understanding of the validity of the contract of debt in kind under the situation that only the agreement of debt in kind is satisfied without the actual delivery.The author in the second part of the definition of bonded,the object from different dimensions resolved to bonded,according to the judicial practice could not reach a consensus to fulfill the object definition and effectiveness,through comparing the methods of research by material bonded to the generation of payment,guarantee,debt changes,similarities and differences of new debt repayment system,clarify the form sense of the word with bonded,meaningful with bonded,strictly to the difference between the bonded.The third part the author with time sequence is trying to show the Supreme People’s Court to form sense of the object to fulfill the train of thought,by the Supreme People’s Court to form sense with the understanding of the content effectively change process,studies the judicial practice in our country to form in the sense of the cognitive process of content bonded,eventually form the effect of the mean centered typed study and define,using the traditional civil law of the change,the new generation of liquidation,debt debt repayment to form in the sense of things such as bonded typed the referee in different situation,specific generation thing settlement is necessary to fulfill the object,is a strictly to fulfill the object;When the parties fail to explicitly eliminate the old debts when entering into the debt-for-substance agreement,it is a debt-for-substance agreement in which both the new debts and the old debts coexist.When the parties enter into the debt-for-substance agreement,the intention is clear,pointing out that the new debt will be used to eliminate the old debt.Once the debt-for-substance agreement is not performed,the creditor cannot claim the old debt,but can only request the performance of the debt-for-substance agreement,which constitutes the modification of the debt.In case no.974 of minshen(2017),the supreme people’s court made it clear that the debt-for-substance agreement signed before the expiration of the debt repayment period was a disguised form of guarantee and did not belong to the substantive debt-for-substance agreement as the author believed.In the fourth part,on the basis of exploring the effect meaning of the parties’ conclusion of the debt-for-goods agreement,the author takes the judgment cases of the supreme people’s court as the perspective to define the nature and effect of the debt-for-goods agreement in the formal sense.Will form in the sense of a debt to Sue the object as the standard is divided into prior to the expiration of the debt repayment period when delivery bonded by thing to fulfill agreement and signed prior to the expiration of the debt repayment period to non bonded material bonded agreement,signed after the expiration of the debt repayment period in a debt agreement and deliver the bonded material and signed after the expiration of the debt repayment period in a debt agreement did not deliver the bonded material 4 types.The fifth part the author from the supreme people’s court referee case sums up of the supreme people’s court will be signed prior to the expiration of the debt repayment period in a debt agreement content out of the meaningful after a debt outside the scope of the object fully recognized after the expiry of the liquidation period to the effectiveness of a debt agreement,signed and the effect of the parties meaning centered typed to define meaningful to bonded,will have to perform to complete a debt agreement as the object of generation of liquidation of nature by material properties;It will make it clear that the new debt will replace the old debt,and the debt-for-substance agreement that the old debt will be eliminated will be regarded as the debt’s changing nature.The debt in kind which is not clear that the new debt will wipe out the old debt shall be regarded as the debt in kind to repay the new debt.The author thinks that the debt liquidation prior to the expiration of the period’s agreement to fulfill the object is not meaningful to bonded,generation of material discharge is strictly to fulfill the object,meaningful to owe,including generation of liquidation of nature to fulfill the object,the nature of the new debt repayment,to fulfill the object and change to fulfill the object of the nature of the debt,combined with the supreme people’s court in combination with the problems in the judicial practice,the author thinks that we can consider to abandon the concept of bonded the object,the introduction of new generation of liquidation,debt repayment,change concepts and gradually perfect the debt,in order to avoid unnecessary confusion and conflict,achieve the unity of the kind of case referee,perfect.