The Nature And Effectiveness Of The Agreement On Paying The Debt By A Thing

Debt settlement by property is not a formal legal concept,and it has developed from practice.In recent years,the number of cases of debt-for-things disputes has been increasing,but there is no regulation on it in our country’s current law,there are also different views on the nature and effectiveness of the debt settlement agreement in theory,which cannot give a good guide to judicial practice,which leads to the complex and dazzling issue of determining the nature and effectiveness of the debt settlement agreement.This article takes practical cases as the starting point,sorts,analyzes and compares the judgments of such cases,combined with theoretical theory,in order to clarify the nature and effectiveness of the agreement.In addition to the introduction and conclusion,this article consists of five parts:The first part: Problems in the judicial application of the debt-for-debt agreement.Through the analysis of 87 cases,the author sorted out the content of the parties ’agreement and the court’s judgment,and found that the problems in the legal application of the debt foreclosure agreement were manifested as unclear definition of connotation,inconsistency between practice and practice,and multiple nature judgments.The second part: Defined by the connotation of the debt settlement agreement.Debt-for-debt agreement refers to an agreement reached between the creditor and the debtor or a third party to replace the original payment with other types of payment to settle the debt.Its constituent elements include that there must be a debt of money;to agree that other kinds of payments replace the original ones;there must be a different kind of payments different from the original ones.The third part: The promiscuity of debt-in-kind agreement.As to whether the agreement on debt settlement is pragmatic or practical,controversies in practice are far less academically controversial.After introducing the viewpoint of consensual dispute with practice,the author argues from three perspectives: the reflection on the nature of the payment of substitutes,the positioning of an anonymous contract,and the non-reliance of the debt settlement agreement and the false litigation to argue that the agreement for paying the debt by a thing is a promised contract.The fourth part: Judging by the nature of the debt settlement agreement.In practice and in theory,the debt-for-debt agreement is often characterized as surrogacy settlement,guarantee,liquidity contract,debt renewal,and new debt settlement.Since the relationshipbetween the debt-for-debt agreement and surrogate settlement has been clarified in the foregoing,the author is in this part Only the judgment of the nature of guarantee and liquidity was denied,and in principle,it was not a renewal of the debt.The judgment of the nature of the settlement of the new debt was affirmed.After the agreement was reached,new and old debts coexisted.The fifth part: The legal effect of the agreement on paying the debt by a thing.When the term of the new debt is not fulfilled,the creditors have the option.In practice,in the execution stage of the outsider and the lawsuit of execution objections,it involves disputes about whether the debt-for-debt agreement can resist the enforcement type,the author believes that the debt-for-debt agreement can refer to the applicable sale and purchase contract to analyze the legal requirements of whether or not the execution of the debt for money can be prevented.When the other kind of payment has the flaw,the author thought should carry on the measurement to be suitable.If the conditions for the termination of the contract are met,the agreement can be cancelled and the original payment is requested,otherwise the indemnity agreement cannot be cancelled at will,and the debtor can be requested to bear the corresponding guarantee liability for the defect according to the degree of defect.