Research On The Legal Effect And Judicial Application Of Debt In Rem

The phenomenon of debt in kind exists in the practice of civil law of our country.China has not formed a complete theoretical framework for the theoretical study of debt in rem,there are no clear provisions in law,and there is no unified judicial operation standard in judicial practice.On the understanding of the nature of debt in rem,it is often confused with datio in solutum,lien contract and sale guarantee,which leads to confusion in legal thinking.There is always a dispute over whether debt in rem has legal effect,which leads to a lot of confusion in the judicial application of debt in rem cases.This paper studies the effectiveness of the debt in kind agreement,firstly defines the concept of the debt in kind agreement,then derives its nature according to its definition,and then uses relevant processing rules to determine whether the debt in kind agreement is effective.Through with his kind of payment instead of the scheduled payment by material bonded phenomenon analysis to the nature of the bonded,namely from the perspective of contract,will owe,defined as the object has produced the original debt,the debtor has realistically afford the payment obligation,the two sides agreed to transfer bricks and substitute was scheduled to pay debt performance of flexible conventions.Based on this concept,it is clear that the nature of debt in solutum should be new debt repayment,and through the comparative analysis of debt in solutum and relevant legal system,it is concluded that datio in solutum is a situation of debt in solutum,and there are essential differences between debt in solutum and lien contract,and debt in solutum is also different from the type of sale guarantee.In order to solve the judicial chaos of different judgments in the same case,unifying the establishment requirements of debt in rem is the fundamental to solve the conflict in the judgment of debt in rem.The consensual nature of debt in rem has become a historical trend,and the consensual nature is more reasonable and should be confirmed.Under the general premise of a debt in rem as a consensual contract,if there is no special agreement between the two parties,a debt in rem contract will be established and take effect.It has important theoretical value and practical significance to correctly understand the nature and effectiveness of debt in rem and to provide a clearer idea for judicial application,so as to maintain the authority and predictability of judicial judgment.