A Study On The Judicial Application Of Debt Accession

With the development of transaction forms,the disputes of debt accession are increasing.Article 552 of the civil code legalizes debt accession.The debt accession system is confirmed in legislation and stipulates the legal consequences and types.However,only a single provision is difficult to comprehensively solve the complex problems of judicial practice.Therefore,it is necessary to deeply explore its specific application through theoretical analysis and interpretation,so as to provide reference for judicial practice.The identification of debt accession should distinguish its constituent elements and types on the basis of clarifying the expression of the parties’ will.The constitutive elements of debt accession should include formal elements and substantive elements.The formal elements include the use of written form and the restriction of the subject qualification of the acceptor.The substantive elements include the existence of the original creditor’s right and debt relationship,the original debtor does not withdraw from the creditor’s right and debt relationship,and notifying the creditor or creditor to accept it.The existence of the original creditor’s right and debt relationship should include the effectiveness and transferability of the original debt.The scope of the original debt is not limited to the existing debt at that time,but also includes future debt.The two types of debt undertaking stipulated in the civil code between the third party and the debtor and the debt undertaking unilaterally promised by the third party are sufficient to meet the practical needs,and do not exclude the effectiveness of other types such as debt undertaking under the tripartite agreement.The theoretical basis of the debt undertaking between the third party and the debtor is the third party interest contract,and the theoretical basis of the debt undertaking unilaterally promised by the third party is the unilateral promise.The debt accession system should pay attention to the protection of the rights of all parties.Because the debt acceptor joins the debt and bears the same responsibility and status as the original debtor,the debt acceptor enjoys the defense right of the original debtor against the creditor,but it should take the time when the debt accession contract is established as the node.Based on the protection of the rights and interests of the acceding party,the acceding party has the right of defense arising from joining the debt.If the original debt is expanded,the rights of the acceding party will not be expanded.If the original debt is reduced or reduced,the debt of the acceding party will also be reduced or reduced.Because the contract is relative,the debt acceptor has no legal right of recourse against the original debtor and the guarantor.The right of recourse of the debt acceptor can be agreed through the debt acceding contract.The guarantor’s recovery from the debt acceptor varies according to the time when the guarantee occurs.If the guarantee behavior occurs before the debt acceptor,the guarantor does not have the right of recovery from the third party;If the guarantee takes place after the debt is added,the guarantor has the right of recourse against the third party.According to the relative independence of debt accession,the debt acceptor only undertakes the subordinate debt generated after debt accession.If there is an agreement in the debt accession agreement,it shall follow its agreement.In terms of the protection of the rights of the creditor and the original debtor,the refusal and consent of the creditor has legal effect.After the creditor makes it clear that the accession of the debt cannot be terminated by unilateral notice,and the reasonable period for the creditor to exercise the right of refusal is mainly agreed.The original debtor has the right of objection,because not enjoying the right of objection will bring inconvenience to the debtor,and the reasonable expression of intention of the debtor should also be respected.In addition,the agreement between the creditor and the debtor on the jurisdiction of the court is valid for the debtor.