Research On The Legal Application Of Debt-for-things Agreement

In recent years,as the Chinese market economy develops rapidly,the number of cases related to the debt-for-pocket agreement has increased significantly,showing a trend of complication.However,China’s legislation on the agreement of repayment of debt in rem is still in a blank state,and the judicial adjudication lacks a clear and unified legal basis.The theorists also learn more from the experience of Germany and Taiwan region,which makes the current agreement of repayment of debt in rem face a dilemma that can not be relied on,the adjudication results are quite different,and the theoretical research is controversial.Under this background,The main body of this paper can be roughly divided into four sections.Starting from the theoretical basis and judicial practice,the author discusses the legal application of the agreement of set-off in rem in depth layer by layer,with a view to constructing a set of effective legal application rules of the agreement of set-off in rem.The first part analyzes the problems existing in the application of the law of the debt-for-pocket agreement in China.Through sorting out the relevant validity norms,and through the data statistics of court decisions and case studies,the author points out the problems existing in the application of the law of the agreement on repayment of debts in rem in China at present: there are no explicit provisions in the Civil Code,and the norms that can be used for reference are scattered in the Minutes of the People’s Republic of China and the Judicial Interpretation of Private Lending;In the judicial judgment,there are great differences on the definition of the nature,the determination of the effectiveness and the application of the post-relief measures of the agreement on the payment of debts in rem,and then it points out the necessity of carrying out the research on the legal application of the agreement on the payment of debts in rem.The second part defines the nature of the debt-for-pocket agreement.Through the analysis of the main viewpoints of the academic community,it is pointed out that the agreement of paying off debts with goods is different from the agreement of paying off debts with goods as the act of paying off debts.The term describes the arrangement between the lender and borrower to substitute the primary mode of payment with alternative means to settle the original debts.The agreement on repayment of debts in rem is a new debt settlement and a promise contract.It shall be established and come into force when the parties have expressed their true intentions and have not violated the validity and mandatory provisions of laws and administrative regulations.The third part determines the effectiveness of the agreement on repayment of debts in rem.This paper analyzes the effectiveness of the agreement on repayment of debt in rem divided by the period of performance in Articles 44 and 45 of the Minutes of the People’s Republic of China,points out that there are problems in the division that blur the boundary between the agreement on repayment of debt in rem and the guarantee of debt,and impairs the efficacy of the debt repayment agreement in relation to real property.,and puts forward that the agreement on repayment of debt in rem reached before and after the expiration of the period of performance is valid without violating the mandatory laws and regulations,The agreement reached in the lawsuit to pay off debts in rem has dual attributes(the agreement to pay off debts in rem and the settlement agreement),and is also subject to the relevant laws of civil law and civil procedure law.If the debtor and a third party conclude an agreement to pay off debts in rem and transfer property to pay off debts,unless the value of the substitute payment is much higher than the original subject matter of the debt,the agreement is valid,and the creditor cannot claim to cancel the agreement to pay off debts in rem.The fourth part discusses the performance of the agreement and the liability for breach of contract.After the establishment of the debt-in-rem agreement,new and old debts coexist and only when the debtor is unable to perform the new debt,the new debt is cancelled or invalid,the creditor can claim the performance of the old debt from the debtor,and the creditor does not assume the liquidation obligation.If the new debt cannot be performed,the creditor can request the debtor to perform the original debt without rescission of the contract.If the debtor’s breach of contract constitutes a minor defect,the obligation for the imperfection assurance will be assumed by the debtor and the creditor cannot claim the right to recover the original debt.However,if the debtor constitutes a fundamental breach of contract,the creditor may apply for immediate enforcement of the initial claim,without cancelling the contract for payment in kind.