Study On The Legal Application Of Debt Accession

Before the promulgation of the Civil Code of the People’s Republic of China(hereinafter referred to as the "Civil Code"),debt accession has been widely used in practice as a credit enhancement guarantee measure,but the law is not plain text,which leads to different identification standards of debt accession,difficulty in distinguishing debt accession from joint guarantee,whether the third party enjoys legal right of recourse and so on.After the promulgation of the Civil Code,these issues have the basic basis for interpretation due to the provisions of Article 552 of the Civil Code,but how to grasp it is still unclear and needs further discussion.In the control of the criteria for the admission of debt,in principle,a comprehensive judgment should be made according to the explicit wording or unique expression of the corresponding meaning in the contract terms,combined with the context and the behavior of the parties.If there are only words such as "guarantee" or "guarantee",the judgment shall be interpreted according to the context.If the third party adds the debt to ensure the smooth repayment of the debt,the "guarantee" in the statement shall be understood as "guarantee".If the contract is clearly stated and undisputed,the terms shall be defined in accordance with the wishes of the parties.Attention should also be paid to the existence of elements that demonstrate a master-slave relationship with the original debt.If there is an obvious master-slave relationship,it should be characterized as a guarantee.If in addition to the original contract terms,additional debt payment time,payment amount and other terms,generally should be characterized as debt accession.If a third party directly participates in the confirmation of the reconciliation statement with the creditor through its own behavior or undertakes to repay the debt,it shall also be regarded as the recognition of the debt accession.As for the distinction between debt accession and joint and several guaranty,it should be judged in principle according to the explicit wording or unique expression of corresponding meaning in the contract terms.However,if the content of the parties’ expression of intention is contradictory with the wording,the wording is ambiguous and other special cases cannot be directly interpreted to determine the true meaning,it is necessary to combine with other interpretation rules to interpret.In the case that the interpretation of the meaning is difficult to be clear,a comprehensive judgment can be made from the aspects of claim right and interest ownership.If necessary,it can take whether the third party has the corresponding payment interest for the performance of the debt as the substantive standard.If it does,it shall be regarded as the debt accession;if it does not,it shall make specific judgment according to the identity of the subject.Relatively speaking,stricter standards shall be implemented for the commercial subject.However,this standard should not be used alone,and should be combined with the actual performance behavior,performance rank and other standards for comprehensive consideration of all the circumstances of the case.In order to enhance the convenience of law application and the predictability of judgment results,and to follow the autonomy of the will of the parties and balance the protection of the interests of the parties,it should be presumed as the guarantee when in doubt,the application of the proposed rule should also be limited,and it can only be used when the true meaning cannot be explored after the exhaustion of interpretation rules.The judgment of whether the party to the debt enjoys the legal right of recovery after the repayment should be based on the purpose identity of joint and several debt and the rules of loss sharing.In our country,the internal claim right of the joint and several persons is stipulated because there is interest relation between the joint and several persons.The theory of not true joint liability and unjust enrichment is not acceptable.On the premise of clarifying the essential difference between the debt accession and the guarantee,the debt accession party is in the same position as the original debtor after joining and assumes its own liability,while the guarantee liability of the guarantor has secondary character and assumes the liability of the debtor.Therefore,unless there is a special agreement between the parties concerning recovery,the party to the debt has no right of recovery.