Debt Addition Explanatio

Article 552 of the civil code has written into the civil code the situation of debt accession that has long existed in judicial practice,which corrects the source to a certain extent for the court to refer to Article 84 of the contract law and other inappropriate basis in practice.However,it is still very difficult to distinguish the meaning of debt accession disputes in judicial practice.In particular,the identification of debt accession and guarantee,although many distinguishing rules have been summarized from different perspectives in theory and practice,they are still inadequate in the face of complex practical problems.In addition,although article 552 of the civil code confirms some relatively mature views in judicial practice,there are different understandings of the specific provisions in practice and theory.In order to solve the above problems,I think it is a good method to explain debt addition with the thinking of interpretive theory.To deal with the practice of debt joining with the thinking of interpretive theory is to solve specific cases through the interpretation of the conceptual content and structure of the articles of law based on the current effective norms of empirical law,and to systematize the reasoning of judgments as much as possible.Based on this,I combed the judgment situation of debt accession from the judgment documents,took the problems found in practice as the starting point,straightened out the practical problems of debt accession,evaluated and analyzed the relevant views of debt accession,and put forward the treatment path and rules adhered to in this paper with 552 articles as the center.The purpose is to better apply to judicial practice.Specifically,this paper will start from the following five aspects.The first chapter clarifies the basic theory of debt accession.First,clarify the definition of debt accession and the functional positioning of guarantee.Then it discusses the underlying logic theory of debt joining structure,which is currently recognized by the academic community,and links the establishment mode of practice with the two modes expressly stipulated in the law from the perspective of range,and comes to the conclusion that the establishment mode of article 552 completely covers the four Establishment Modes of its judicial practice.Then it makes a brief introduction to the theoretical distinction between debt accession and debt undertaking,performance undertaking and guarantee of exemption,in order to make a rich interpretation of the connotation of debt accession,accurately locate the system function of the specification,and pave the way for the in-depth demonstration of the article.The second chapter is the regulation of the practice of debt accession.I think the practice of debt accession is mainly reflected in two levels: the first level is to start from the identification of debt accession,including the identification of the qualification of the third party and the identification of the expression of intention in the dispute of debt accession.The second level is the effectiveness of debt accession.It is divided into two stages.The first stage is that the rules affecting the establishment of debt accession are not specific or controversial,mainly involving the three rules of creditor’s right of refusal,the operation structure of notifying creditors and the debtor’s objection;The second stage is the effect after the entry into force of the debt,which involves the dispute of the third party’s responsibility and the right of recourse.The third chapter is about the interpretation of the rules of debt accession.Mainly from the perspective of interpretive theory to solve the problems of the recognition of debt addition.In my opinion,the identification of the qualification of adding debt to the third party subject should refer to the qualification of the guarantor in the interpretation of security in the civil code,so as to maintain the safety of public property,which meets the needs of our society.On the interpretation of the expression of intention of adding debt.We should insist on the priority of literal interpretation,and then advance to the substantive judgment when the literal interpretation cannot be determined.If there is still doubt,we should adopt the position of Article 36 of the interpretation of security in the Civil Code: the presumption of doubt is the guarantee.The fourth chapter is the interpretation of the effect of debt accession.This issue is divided into two stages.The first stage is to explain the rights and interests that have an impact on the incorporation of debt.First of all,the creditor’s right of refusal is the best answer to the dispute of creditor’s consent.It takes into account the advantages of the consensual model and the unilateral behavior model,and respects the intentions of most beneficiaries in life.Secondly,the structure of creditor’s notice of debt joining can be analogically applied to the creditor’s notice in debt transfer.The debtor’s right of objection should respect the party’s autonomy of will in light of the actual situation of the case.The second stage is the interpretation of the effect of the entry into force of the debt on the parties concerned.I prefer a third party to undertake joint and several debts.Secondly,the third party should obtain the right of recourse according to the provisions of joint and several debts after paying off the debts.The fifth chapter is a detailed description of the rules of recognition and effectiveness of debt accession.The qualification of adding debt to the third party is clearly defined,and the treatment method when the meaning is unclear is detailed.In view of the effectiveness of the creditor’s refusal,different types of debt have some transformation effects.If the obligor fails to notify the creditor,the addition of the debt shall not be effective to the creditor.In addition,the provisions of joint and several debts can not be fully applicable to the joint and several debts,which should be analyzed in combination with the independence of the joint and several debts.The right of recovery can be divided into different types of debt,and the scope of the right of recovery can be determined according to the share of joint and several debt in the civil code.