Research On The Legal Effect Of Contract Of Datio In Solutum

Contract of datio in solutum refers to the agreement reached by the parties to replace the original payment with other kinds of payment in order to eliminate the original debt relationship,hindering the civil law countries and regions to use it as a kind of important contract to provide,in practice,often confused the contract of substitute settlement with the performance of the settlement of the substitute,resulting in the validity of the contract is often denied.Not only that,due to the need for financing,the settlement contract and the guarantee clause appear to be mixed,in practice,a large number of cases through the formation of a substitute settlement contract to offset the debt,bring great challenges to judicial practice.The difficulty of legal transplantation and the different judgments in the trial practice make it urgent to study the system of the settlement contract on behalf of the substitutes.Based on the study of the principle of meaning autonomy and the history of private law,combined with the development of judicial practice,this paper affirms the rationality of the settlement contract as a non-stereotyped contract,and analyzes the legal effect of the settlement contract on this basis.The first part is about the basic theoretical analysis of the contract,mainly related to the legal structure and legal nature of the settlement contract,analysis of the relationship between the contract of datio in solutum and the relevant legal concepts to clarify the connotation and extension of the contract of datio in solutum,and discusses the constituent elements of the settlement contract,the contract of datio in solutum is considered to be a misunderstanding of the history of private law,in practice stressed that the material nature of the settlement contract to prevent false litigation is not in line with the interests of the parties.The second part is about the legal effect analysis of the settlement contract before the expiration of the performance period,in the the Minutes of the National Court Work Conference for Civil and Commercial Trials,according to whether the performance period expires,the settlement contract is divided,which is about the performance period before the expiration of the settlement contract The validity of the determination of the existence of a misunderstanding,on the grounds that such contracts have security effect and the application of the prohibition of detention provisions to deny its effect,judicial practice has also taken this approach,however,such substitute settlement contracts do not have the effect of security,in the Civil Code The effect of such contracts should be recognized in the context of the relaxation of restrictions on the terms of the transfer,and the expiration of the performance period does not sum up the characteristics of such substitute settlement contracts,which should be referred to as conditional substitute settlement contractsThe third part mainly analyzes the legal effect of the general type of substitute settlement contract,that is,after the expiration of the performance period,the settlement contract does not necessarily lead to the elimination of the original payment after the effective date,when the parties have not made a clear statement,the original payment should be eliminated when the replacement payment is completed.In addition,there is a special type of third-party settlement contract in the general settlement contract,which should be distinguished from the legal effect of debt obligation and third party performance.The fourth part is about the demonstration of the relief way when defects in the performance of the contract of datio in solutum occur.In the contract of datio in solutum,the removal of special types of substitute settlement contract has different legal effects.How to design the two relief ways to replace the defective security liability of payment and request the return of the original debt to perform is the focus of the problem of the validity of the contract of settlement of the substitute,the debtor should be required to bear the liability for defective security in lieu of payment according to the settlement contract,in order to protect the interests of creditors,in order to protect the interests of creditors,in the performance of the substitute payment defects,the creditor should be given the right to request the direct request to perform the original debt.