Reserch On The Legal Issues Of The Datio In Solutum

The current legislation of our country has not stipulated the system of Datio in Solutum,but it has stipulated the freedom of contract change and the freedom of contract termination,and the cases involving Datio in Solutum are more and more common in the judicial practice of our country,so the system of Datio in Solutum has full space and value in our country.The case of the sixth communique of the Supreme People’s court in 2012 identified Datio in Solutum as a practical contract,it seems to unify the understanding of judicial practice.In fact,after the case was published,the court’s judgment on the case involving the Datio in Solutum is still complex.Some courts hold that the agreement of the Datio in Solutum is not effective;some courts explicitly or implicitly hold that the agreement is effective;even in some cases,different courts at different trial levels hold different opinions on the same case.In order to improve this complex situation,to provide reference standards for judicial practice,and to improve the civil legal system,we should clarify the understanding of Datio in Solutum.Therefore,this paper mainly makes a deep analysis of the the problem of nature of Datio in Solutum,the problem of the constitutive requirements of Datio in Solutum,the problem of the difference between Datio in Solutum,indirect payment and debt modification,the problem of the effect and the performance of Datio in Solutum.Based on the methods of literature research and induction and deduction,this paper starts from the basic theory of Datio in Solutum and the cases in judicial practice.By comparing different theories and summing up,combined with the actual situation of our country,this paper defines the nature of Datio in Solutum.On the basis of defining the nature of Datio in Solutum,combined with foreign laws and the views of domestic and foreign academic circles,this paper constructs the constitutive requirements of Datio in Solutum.According to the nature of Datio in Solutum,indirect payment and debt modification,this paper compares them and analyzes the differences between them.From the two aspects of unrealistic performance and defective performance,this paper compares various theoretical points of view,and puts forward solutions to the problem of performance of Datio in Solutum.In this paper,we find that the property of Datio in Solutum belongs to normal debt change deed.The constitutive requirements include that both parties reach anagreement on Datio in Solutum,there is an effective debtor-creditor relationship,the content of alternative payment is different from the original payment,and there is no need to perform alternative payment in reality.Whether or not Datio in Solutum and indirect payment change the identity of original debtor-creditor relationship is different;whether Datio in Solutum and indirect payment generate new creditor’s right and debt relationship is different;the agreement reached by both parties in Datio in Solutum and indirect payment is different;the flaws guarantee liability of Datio in Solutum and indirect payment is different.It is different in Datio in Solutum and debt modification when the original debtor-creditor relationship should be eliminated;If the obligor doesn’t perform within the time limit,the creditor may take different remedies;The purpose of Datio in Solutum is different from that of debt modification.When alternative payment have not been put forward at the end of the performance period,the obligee shall first request the obligor to perform alternative payment,and at the same time claim the subordinate rights such as guarantee liability on the original debt.When alternative payment cannot be performed,the obligee can request the obligor to perform the original payment.When there are flaws in other kinds of payment,the creditor shall request the debtor to bear the liability for guarantee of flaws according to the nature of the original payment;because the alternative payment have replaced the original payment when the Datio in Solutum is established,the obligee cannot request the obligor to perform the original payment.