Analysis Of The Agreement Of Paying Debts In Kind

With the development of market economy and flexible trading habits,the practice of related disputes arising from the debt repayment of goods has gradually increased.Because our law does not include the agreement of paying debt with property into its scope,the academic circles have different opinions on the debt with property.For a series of cases of debt repayment with property,there is no uniform guiding standard in judicial practice,which leads to the phenomenon of different judgments in the same case in local courts,which affects the judicial order and the unity of legal system in China.In view of the current situation of debt repayment with property,this paper will combine the academic point of view and judicial practice,clarify the concept and the type of effect of debt repayment with property,through the existing theory to analyze the nature of the agreement on the debt with property,so as to discuss the problems in practice,and then put forward suggestions for the improvement of the debt with property.The research content of this subject will be divided into five parts.The first part is the overview of the agreement on the payment of debt.This part is aimed at the unclear concept of debt repayment with property.Starting from the reasons and purposes of the agreement,the concept is clarified: the agreement of the parties to pay the debt with goods refers to the agreement between the parties to replace the original payment with other kinds of payment.The nature of the agreement on the repayment of goods mainly includes three theories: punishment behavior theory,contract theory and liquidation behavior theory.Because the theory of disposition behavior and liquidation behavior ignore the expression of intention between the parties,the author thinks that the agreement of property debt repayment is regarded as a kind of settlement contract to be more suitable for its existing purpose.Because the agreement of paying off debt with goods is a contract between the parties to replace the original payment with other kinds of payment,the agreement of property repayment presents three forms: substitute for property,new debt and renewal of debt according to the different autonomy of the parties.The second part is to give effect and performance of the agreement on the payment of debt with goods.Combined with the relevant judicial cases,the necessity of the change of the agreement on the debt repayment from practice to practice is analyzed.For the types of debt agreement with property which exist in the new and old debts at the same time,neither party has the right to choose the order of contract performance,and should give priority to the performance of the agreement.The agreement on the repayment of debt with goods reached before the maturity of the original debt may refer to the liquidity contract,but it does not deny its effect completely,and allows the parties to give effect through the agreed discount and liquidation procedure.It is clear that the performance of the agreement of property repayment must be publicized accordingly to produce the result of property change.The third part is the way to remedy the breach of contract of property debt.In case the debtor violates the agreement of paying debts with goods,it shall discuss separately according to the extent of the debtor’s breach of the agreement on the repayment of goods.When the debtor only constitutes the defective performance,the debtor cannot return to the performance of the original contract.Only if the debtor constitutes the fundamental breach of the debt with the property,the creditor claims to cancel the agreement,Can be returned to the performance of old debt.At this time,the parties can require the other party to bear the liability for breach of contract by paying off the debt with property,or request to return to the performance of the original contract.The fourth part,the type analysis of debtor’s liability for breach of contract.In contrast to the sale contract,in the case of the debtor failing to perform or delay the performance of the agreement on the repayment of the debt with goods,the creditor shall be given the right to terminate the contract,allowing it to return to the performance of the original debt or claim the liability for breach of contract under the agreement.When there is quality defect in the debt paying property,the liability for the defect guarantee shall be borne according to the principle of liability sharing of the debtor in the original contract.Because the debt with property belongs to a single contract,in the case that the debtor has no right to dispose of the debt paid,because it does not meet the constitutive requirements of the creditor to pay reasonable consideration,it is concluded that the system of good faith acquisition is not applicable in the debt repayment with property.The fifth part is the key issues in the judgment of the dispute of the agreement of the property repayment.This part mainly through the analysis of the deal with the contract of goods and purchase,the determination of the price of the debt paid and the protection of the interests of the third party in the debt with the property.