Study On The Identification And Liability Undertaking Of Debt Accession

Debt accession,as an effective way to expand the opportunity of creditor’s rights compensation,has been widely applied in the field of economic life,but it was not clearly stipulated in the law until the era of Civil Code.On the one hand,the debt has filled the legal gap and perfected our civil legal system;The other side guided the judicial practice so that the judgment could be based on law.However,the principle provisions of a single article,coupled with the lack of some detailed norms,still exist in practice such problems as inconsistent qualification limits of the subject of debt accession,inconsistent formal requirements,and unclear scope of liability of the accuser.This seriously affects the protection of the rights of the parties and the authority of judicial judgment.Through the study of the debt accession related theories,the author analyzed the situation and question of the debt accession and the responsibility assumption.By means of purpose explanation,reference applicable guarantee and so on,the author put forward the suggestion of perfecting the debt accession rules in our country.In order to improve the identification standard,clarify the scope of responsibility,clarify the basis of the right of defense and right of recovery,and promote the long-term healthy development of the debt accession system.The whole structure of this thesis is divided into five parts in addition to the introduction and conclusion.The first part is the general problem of debt accession.First of all,by comparing and determining the appellation and concept content of "debt addition",different types of debt addition are introduced.Secondly,the logical basis of debt accession is the third party benefit contract,combined with the objective effect and position of debt accession,determine its guarantee function positioning and system positioning.Finally,debt addition is distinguished from similar concepts such as debt transfer and guarantee.The second part is the identification of debt accession.Starting from the three elements recognized by the academic circle: effective existence of the debt of accession,transferability of the debt of accession and the expression of the intention of the debt of accession,the author discusses the different problems arising from the development process of the three elements in theory and practice,and determines the intrinsic rationality of the three elements.Linking with the third party interest contract and "modified unilateral behavior mode",this thesis analyzes the impact of notification obligation,creditor’s consent and debtor’s intention on the recognition of debt.The third part is the responsibility of debt accession.On the one hand,with the same benefit of payment and the same rank as the standard,this thesis analyzes the rationality of joint and several liability after debt joining,compared with not true joint and several liability,and discusses the liability of debt bearers to pay off debts.On the other hand,the basis of the debtor’s right of defense and whether there is a right of recourse are discussed in the context of academic views.The fourth part is the recognition and responsibility of our debt accession present situation and question.Firstly,from the analysis of the legislative situation,it finds that there are some problems in our country’s debt accession system,such as absence of detailed norm and ignoring the debtor’s objection right.Next,from the number of cases and trial level distribution,frequency distribution,presents the judicial situation of our country debt accession to recognize and the responsibility to undertake.Finally,by referring to the legislative situation and specific cases,this thesis analyzes the existing problems of our debt accession identification and responsibility assumption.First,the qualification restrictions and form requirements of the subject of debt accession are not uniform;Second,the application of the criteria for the differentiation of debt accession and guarantee is confused;Three,the scope of the accuser’s liquidation is vague;The basis of the right of defense of the debt bearer is unclear and the right of recourse is unclear.The fifth part is the suggestion to improve the recognition and responsibility of our debt accession.Firstly,in terms of the identification criteria,in order to reconcile the conflict between the insufficient supply of norms and the development of guarantee function,the qualification restrictions and formal requirements of the subject of debt accession by referring to the criterion of guarantee,and the application premise and sequence of the distinguishing criteria of debt accession and guarantee are clarified.Secondly,according to the subordination on the establishment of the debt accession,the scope of liability is defined with the establishment time of the contract as the node,and the liability for breach of contract in the debt accession contract is restricted.Thirdly,from the purpose of rights protection,the basis and type of the defense right of the acceding party should be defined with limited reference to the guarantee provisions,and the partial recovery right of the acceding party should be affirmed according to the joint and several debt rules.