间接给付的理论和实践研究
发布时间：2018-08-18 07:37
【摘要】：间接给付为债务人为清偿旧债务而对债权人负担新债务，除当事人另有意思表示外，若新债务不履行，其旧债务仍不消灭。该制度在德国与我国台湾地区“民法”中都有明确规定，虽然日本民法中并未规定，但是理论与审判实务中均已承认，我国仅在旧合同法草案中有所规定，而在现行合同法以及未来民法典的学者立法建议稿中均未再出现，本文认为，该制度在概念上独立，对于我国司法实践中存在的一些问题不失为一种好的解决方法。 本文第一章对间接给付的基本性质进行分析。对学说上间接给付的定义、成立条件、效力、实务中的相关问题结合我国实际进行梳理。通过对间接给付与债之更改、代物清偿等相近制度进行比较，认为间接给付在其中处于最基本的意思表示，当事人需要进一步的约定才能成立债之更改或代物清偿，效力上与传统的代物清偿与债之变更不同，间接给付中旧债务并非因负担新债务而立即消灭，相关担保亦从。间接给付与传统的民事和解契约也有所不同，不应将其认为系和解契约的一种类型。 本文第二章主要对我国现阶段引入间接给付可行性进行分析。债务人为清偿债务而签发票据时与债权人达成协议，通说认为其性质属于间接给付，日本法院判决曾将该协议性质认定为债之更改，但现已修改为间接给付，我国应无例外。本文认为债务人为清偿旧债务而负担新债务，多发生在当事人自行和解中，我国法律目前尚无明确规定。强制执行法草案已经区分了执行和解中旧债务消灭和未消灭两种不同的情况。当仅一方当事人负担债务时，人民调解中当事人接受调解或和解、仲裁与诉讼中当事人自行和解的情况下，将当事人间的协议认定为间接给付，更符合当事人的真实意思，有利于保护债权人的利益，与我国现行法律制度也并无冲突。 第三章通过具体的案例进行分析，案件中当事人的协议内容并非传统的以物抵债，而是双方签订债权让与协议，使债务人通过向债权人让与自己对第三人的债权来清偿债务，当对第三人的债权无法实现时，债权人应当如何保障自己的利益。法院对此的做法是将当事人间的债权让与协议认定为约定由第三人代为履行协议，，本文认为法院认定与当事人的真实意思不符，有不妥之处，相类似的案件，尤其是在当事人无其他约定的情况下，将当事人间订立的协议认定为间接给付可解决此类问题。
[Abstract]:Indirect payment is that the debtor pays new debts to creditors in order to pay off the old debts, unless the parties express otherwise interesting, if the new debts are not fulfilled, the old debts will not be eliminated. This system is clearly stipulated in the "Civil Law" of Germany and Taiwan. Although it is not stipulated in the Japanese Civil Law, it has been recognized in both theory and judicial practice, and it is only stipulated in the draft of the old contract law. But in the current contract law as well as in the future civil code scholar legislation suggestion draft has not appeared again, this article holds that this system is independent in the concept, may be a good solution to some problems existing in the judicial practice of our country. The first chapter analyzes the basic properties of indirect payment. The definition, establishment condition, validity and practice of indirect payment are combed with the practice of our country. By comparing the similar systems, such as indirect payment and debt modification, as well as settlement of goods, it is considered that indirect payment is in the most basic expression of meaning, and that the parties need further agreement to establish a change in the debt or to pay off the goods on behalf of the party. The effect is different from the traditional subrogation and the change of debt. The old and middle debts in indirect payment are not destroyed immediately because of the new debt. Indirect payment is different from the traditional civil settlement contract and should not be regarded as a kind of settlement contract. The second chapter mainly analyzes the feasibility of introducing indirect payment in our country. In order to pay off debts, the debtor has reached an agreement with the creditor, saying that the nature of the instrument is an indirect payment. The Japanese court ruled that the nature of the agreement had been regarded as the change of the debt, but it has now been revised to the indirect payment, and there should be no exception in our country. This paper holds that the debtor pays new debts in order to pay off the old debts, most of them occur in the settlement of the parties themselves, but there is no clear stipulation in our law at present. The draft enforcement law has drawn a distinction between the old debt extinguishment and the non-extinction of the enforcement settlement. When only one party bears the debt, the parties in the people's mediation accept mediation or conciliation, and in the case of conciliation between the parties in the arbitration and the litigation, the agreement between the parties is regarded as an indirect payment, which is more in line with the true meaning of the parties. It is beneficial to protect the interests of creditors, and there is no conflict with the current legal system of our country. The third chapter analyzes through the concrete case, the content of the agreement of the parties in the case is not traditional recompense, but the two sides sign the creditor's rights assignment agreement, so that the debtor can pay off the debt by transferring his creditor's rights to the third party. When the creditor's rights to the third party can not be realized, how should the creditor protect his own interests. The court's practice is to determine the assignment agreement between the parties as an agreement to be performed on behalf of a third party. This article holds that the court's finding is inconsistent with the true meaning of the parties, and that there are inappropriate, similar cases, Especially in the case of no other agreement between the parties, the conclusion of the agreement between the parties as indirect payment can solve this problem.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.3
本文编号：2188786
[Abstract]:Indirect payment is that the debtor pays new debts to creditors in order to pay off the old debts, unless the parties express otherwise interesting, if the new debts are not fulfilled, the old debts will not be eliminated. This system is clearly stipulated in the "Civil Law" of Germany and Taiwan. Although it is not stipulated in the Japanese Civil Law, it has been recognized in both theory and judicial practice, and it is only stipulated in the draft of the old contract law. But in the current contract law as well as in the future civil code scholar legislation suggestion draft has not appeared again, this article holds that this system is independent in the concept, may be a good solution to some problems existing in the judicial practice of our country. The first chapter analyzes the basic properties of indirect payment. The definition, establishment condition, validity and practice of indirect payment are combed with the practice of our country. By comparing the similar systems, such as indirect payment and debt modification, as well as settlement of goods, it is considered that indirect payment is in the most basic expression of meaning, and that the parties need further agreement to establish a change in the debt or to pay off the goods on behalf of the party. The effect is different from the traditional subrogation and the change of debt. The old and middle debts in indirect payment are not destroyed immediately because of the new debt. Indirect payment is different from the traditional civil settlement contract and should not be regarded as a kind of settlement contract. The second chapter mainly analyzes the feasibility of introducing indirect payment in our country. In order to pay off debts, the debtor has reached an agreement with the creditor, saying that the nature of the instrument is an indirect payment. The Japanese court ruled that the nature of the agreement had been regarded as the change of the debt, but it has now been revised to the indirect payment, and there should be no exception in our country. This paper holds that the debtor pays new debts in order to pay off the old debts, most of them occur in the settlement of the parties themselves, but there is no clear stipulation in our law at present. The draft enforcement law has drawn a distinction between the old debt extinguishment and the non-extinction of the enforcement settlement. When only one party bears the debt, the parties in the people's mediation accept mediation or conciliation, and in the case of conciliation between the parties in the arbitration and the litigation, the agreement between the parties is regarded as an indirect payment, which is more in line with the true meaning of the parties. It is beneficial to protect the interests of creditors, and there is no conflict with the current legal system of our country. The third chapter analyzes through the concrete case, the content of the agreement of the parties in the case is not traditional recompense, but the two sides sign the creditor's rights assignment agreement, so that the debtor can pay off the debt by transferring his creditor's rights to the third party. When the creditor's rights to the third party can not be realized, how should the creditor protect his own interests. The court's practice is to determine the assignment agreement between the parties as an agreement to be performed on behalf of a third party. This article holds that the court's finding is inconsistent with the true meaning of the parties, and that there are inappropriate, similar cases, Especially in the case of no other agreement between the parties, the conclusion of the agreement between the parties as indirect payment can solve this problem.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.3
【参考文献】
相关期刊论文 前1条
1 崔建远;;以物抵债的理论与实践[J];河北法学;2012年03期
本文编号：2188786
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