Research On The Improvement Of China’s Debt Accession System

In the era of rapid development,with the high-quality development of the national economy and society,the number of debt accession cases in trial practice has become more and more,especially in recent years,there have been a number of cases that are difficult to raise.However,in terms of the legal system,although Article 552 of the current Civil Code provides simple and concise provisions on the debt accession system,there are still inappropriateness and gaps in China’s legislation in terms of the form of responsibility and the protection of the joiner,and some difficult problems are left that need to be further resolved.Therefore,in the current situation,it is necessary to study the issue of debt inclusion.First,in terms of the debt accession recognition mechanism.In terms of identification standards,the criteria for whether the third party’s intention expression is clear should be refined,and the inner sincerity reflected by the third party’s expression of intention made in different scenarios should be explored;Moreover,the establishment of debt accession does not strictly require the purpose of guarantee,and the guarantee is only the legal effect of debt accession at the objective level,not the necessary establishment requirements;At the same time,debt accession shall be subject to the restrictions on the qualification of guarantors by analogy,and institutional legal persons and profit-making legal persons shall be prohibited from serving as debt joiners,but debt accession does not have to be forced by the essential rules;In addition,creditors and debtors should be given the right to refuse,and they may express their refusal within a reasonable period of time,which will have the legal effect of making the debt accession agreement retroactively;Secondly,in terms of the form of liability,the current law stipulates that joint and several debts are assumed,but looking at the characteristics of joint and several debts,whether according to the "internal claim theory",the "same level theory" or the "absolute theory of effect",they are far from the essential characteristics of debt joining.From the perspective of internal relations,the debtor joiner and the debtor have no internal claim basis;According to the same-level theory,the debtor is actually the person ultimately responsible for the debt,and is not at the same level as the debtor joiner;Therefore,the relationship between the debtor and the debtor is more in line with the form of non-genuine joint and several debt.Third,it focuses on the protection of third parties,clarifies the defenses that third parties can invoke,and adds defenses of formation rights such as the right of revocation and rescission,but the application of the defense of set-off rights cannot be generalized;At the same time,uniform recovery rules are established,allowing debtors to recover from debtors who are ultimately responsible,but not from guarantors.In addition,the rules for the recovery of the guarantor against the debt joiner are designed as follows: when the guarantor only provides security for the debt itself,based on the identity of the debt,it obtains the status of a creditor from the time of settlement of the debt,and can recover from both the debtor and the joiner by means of legal subrogation;In the case that the guarantor only takes the original debtor as the object of security,it may be deemed that there is no direct legal relationship with the joiner and there is no right to recover from the joiner.