Research On The Determination Of The Effectiveness Of Debt Accession

Debt accession,as a credit enhancement measure,has the function of guaranteeing the realisation of claims.Nowadays,with the flourishing of the market economy and the increasing pursuit of efficiency by market players,debt accession exists in large numbers in China’s economic and social life,and at the same time,the number of judicial cases related to debt accession has been increasing.The Civil Code of the People’s Republic of China(hereinafter referred to as the "Civil Code")responds to the demands of practice by establishing the general regulation of debt accession in Article 552,which fills the gap in the legislation and provides a legal basis for civil subjects to deal with debt accession disputes.However,it is inevitable that only one legal provision to regulate will be insufficient to meet the objective needs of civil subjects to carry out transaction activities,and it is also obvious that it is not sufficient for judicial practice,so it is necessary to further clarify the specific rules for determining the accession of debt.Based on this,this article attempts to further explore and analyse the problems in the determination of the validity of debt accession under the Civil Code through case studies,normative analysis and comparative analysis,to clarify the theoretical controversies,and to make useful suggestions for the perfection of the validity of debt accession in China,with a view to providing reference for judicial practice.The body of this article is divided into four parts:Part I,Overview of the Effectiveness of Debt Accession.The concept and characteristics of debt accession,the concept of determining the validity of debt accession and the relationship with the constituent elements are introduced.Firstly,it is defined that debt accession refers to the act of a third party who agrees with the debtor to accede to the debt,or who indicates to the creditor that he or she is willing to accede to the debt,and that he or she is jointly and severally liable to the creditor as a new debtor with the original debtor.Secondly,by comparing it with similar systems such as debt assumption and guarantee,it is concluded that the act of debt joining as a complex combination of legal relationships possesses unique legal characteristics.Once again,it is clear that the act of debt accession is a civil legal act,and that a civil legal act can only take effect if it meets the statutory constituent elements,so it is concluded that to study the validity of debt accession,it is necessary to examine the determination of its constituent elements.Finally,from the provisions of Article 552 of the Civil Code,the main elements of debt accession are: the subjects of debt accession are the original debtor,the creditor and the third party;the third party agrees with the debtor or the creditor to accede to the debt;the creditor is notified of the agreement to accede to the debt and the creditor does not expressly reject it within a reasonable period of time.In this chapter,an overview of the theory of the validity of debt accession is presented in order to pinpoint the systemic function of the norm and to prepare the ground for the in-depth argumentation of the article.The second part analyses the problems in determining the validity of debt accession.However,the provisions of the Civil Code are rather general,and there is still room for improvement in the constitutive elements of debt accession.Based on this,this article further discusses and analyses the problems of the validity of debt accession by focusing on the constituent elements of debt accession: firstly,the subject matter of debt accession is not restricted in the determination of the qualification of the public interest public legal authority,and the issue of the special nature of the company as a debt accession is to be discussed.Secondly,the elements of consent to debt accession are unclear,for example,the consent to debt accession reached by a third party and a creditor does not take into account the debtor’s intention,and it is difficult to distinguish between debt accession and guarantee when the intention of the parties is unclear.Thirdly,the procedural elements of debt accession are not sufficiently detailed,for example,the specific rules on notification to creditors and creditors’ right to reject are unclear.In the third part,a comparative study is conducted on the experience of foreign countries in determining the validity of debt accession.In response to the problems faced by the determination of the validity of debt accession in China as raised in the second part,the relevant provisions on the constitutive elements of debt accession in the major civil law countries are examined,and the relevant overseas experiences that can be drawn on are summarised,and inspiration for improving the determination of the validity of debt accession in China is proposed based on these experiences.In the fourth part,thoughts on the improvement of the validity of debt accession are proposed.Firstly,it establishes the criteria for determining the subject matter of debt accession,firstly,it clarifies that the subject matter qualification of public legal persons involved in public interest can be applied by analogy to the restriction on the qualification of guarantors;secondly,it proposes that procedural restrictions should be imposed on the company as a debt accession.Secondly,to clarify the content of the elements of consent to join the debt,one is to give the debtor the right to object,and the other is to establish the criteria for determining the intention of the parties,that is,to adhere to the standard of giving priority to the interpretation of the text,followed by the standard of interest,and the standard of "presumption of doubt as a guarantee".Finally,to improve the content of the procedural elements of debt accession,on the one hand,to refine the rules for notifying creditors,on the other hand,to clarify the nature of the creditor’s right of rejection and the rules for dealing with the right of rejection after it has been exercised.