以物抵债合同研究

发布时间：2018-04-28 01:45

  本文选题：以物抵债 + 一般问题　； 参考：《河北经贸大学》2017年硕士论文

【摘要】：一直以来,我国法律并没有对以物抵债合同进行明确的规定。司法实践中,以物抵债合同在多数情况下被看作无名合同,根据一般的合同处理规则进行处理;或者直接被看作代物清偿的一种表现形式,操作中缺乏统一的规定。在理论方面,民法界的学者对以物抵债合同的制度研究较少,只有少数专家学者发表过一些看法。从国外来看,对于以物抵债合同的区分也不明了。本文的主体部分是第二到第五部分。第二部分是以物抵债合同的一般问题,包括以物抵债合同的概念以及同近似合同的辨析。以物抵债合同是经过当事人合意,用替代物代替原有给付的合同,其成立需要多方面的要素:原债权债务有效存在、合同发生在原有债权届满后、替代给付与原有给付不同、以物代替原有给付、需法律有特殊规定或者当事人意思表示一致等。实践中经常将其与代物清偿、流质契约、新债清偿等类似概念想混淆。其实以物抵债合同作为一个独立存在的合同形式与这些合同有本质上的区别。第三部分是以物抵债合同的性质与效力。随着以物抵债合同数量的增加,对其性质与效力学术界与司法实践中却各执一词,因此对其性质、效力的探讨具有较强的实践意义。首先应当以物抵债合同认定为诺成合同,一种负担行为。关于其效力,会根据以物抵债合同签订的时间不同而产生不一样的效力结果。第四部分是关于以物抵债合同制度的问题与冲突。以物抵债合同在我国并不是有名合同,立法上对其没有规定。在司法上,对以物抵债合同的处理存在混乱,各级各地法院对以物抵债合同的性质、效力、有效性等问题并没有一致的处理方法及看法。现实中,以物抵债合同因涉及当事人较多,各当事人之间冲突明显,主要集中在,债权人与抵押权人之间的冲突;一般债权人与优先受偿权人之间的冲突。这些问题与冲突的解决已经成为实务中有效处理以物抵债合同的关键。第五部分是完善以物抵债合同制度的建议。以物抵债合同数量繁多,需统一规制。立法方面,应设立以物抵债合同的专门立法,明确其性质,效力,确定评估的规则;司法方面,颁布司法解释,指导性案例,裁判规则等,争取在各级法院中对以物抵债合同有一个统一的认识与处理结果。针对以物抵债合同中当事人的冲突,应当区分动产、不动产、先抵后押、先押后抵等情况分别处理;针对优先受偿权,建议对其进行登记,防止滥用。通过研究讨论,形成了一个较为合理的以物抵债合同框架,完善以物抵债合同相关的各个方面。一方面,为当事人之间签订以物抵债合同时提供参照依据,让双方当事人明确自身的权利与义务。另一方面,为法院解决冲突提供一个指导方向,为最终判决案件提供法律依据。总之,最终致力于构建理论,解决实际问题。
[Abstract]:All along, our country law does not carry on the explicit stipulation to the rem for debt contract. In judicial practice, the contract in rem is regarded as the nameless contract in most cases, which is dealt with according to the general rules of contract treatment; or it is directly regarded as a form of performance of retribution, and there is no uniform stipulation in the operation. In theory, scholars in the field of civil law do not study the system of rem for debt contract, only a few experts and scholars have expressed some views. From a foreign point of view, the distinction between rem and debt contracts is also unclear. The main part of this paper is the second to the fifth part. The second part is the general problem of the contract in rem, including the concept of the contract in rem and the discrimination of the similar contract. The contract of recompense for debt in rem is a contract in which the original payment is replaced by a substitute through the agreement of the parties. The establishment of the contract requires many factors: the original creditor's rights and debts are valid, the contract occurs after the expiration of the original creditor's rights, and the substitute payment is different from the original payment. To replace the original payment with goods, there are special provisions in the law or the parties concerned express the same intention, and so on. In practice, it is often confused with such concepts as substitute settlement, liquid contract, new debt settlement, etc. In fact, as an independent form of contract, recompense contract is essentially different from these contracts. The third part is the nature and validity of the contract. With the increase of the number of debt-for-rem contracts, the academic circles and judicial practice insist on their nature and effectiveness, so the discussion of their nature and effectiveness has a strong practical significance. First of all, the contract should be recognized as a contract, a burden behavior. As to its validity, it will produce different effects according to the time of signing the contract in rem. The fourth part is about the problem and the conflict of the contract system of recompense. The contract of recompense is not a famous contract in our country, and it is not stipulated in legislation. In judicature, there is confusion in dealing with the contract of recompense in rem, and the courts at all levels do not have consistent methods and opinions on the nature, validity and validity of the contract in rem. In reality, there are many parties involved in the contract of recompense in rem, and the conflict between the parties is obvious, mainly in the conflict between creditor and mortgagee, and between the general creditor and priority payee. The resolution of these problems and conflicts has become the key to deal effectively with the contract of recompense in practice. The fifth part is the suggestion of perfecting the contract system of debt in rem. There are many contracts for redeeming debts, which need to be regulated uniformly. In the aspect of legislation, special legislation should be established to make clear the nature and effectiveness of the contract, to determine the rules of evaluation, and to promulgate judicial interpretation, instructive cases, rules of adjudication, etc. Strive for a unified understanding and treatment of debt-for-rem contracts in courts at all levels. In view of the conflict between the parties in the contract of recompense in rem, we should distinguish between movable property, immovable property, first arrival, first deferment, and so on; in view of the priority right of payment, it is suggested to register it to prevent abuse. Through research and discussion, a more reasonable contract framework of rem is formed, and all aspects related to the contract are improved. On the one hand, it provides the reference basis for the parties to sign the contract of recompense in rem, so that the parties can make their own rights and obligations clear. On the other hand, it provides a guiding direction for the court to resolve the conflict and provides the legal basis for the final judgment case. In short, the ultimate commitment to the construction of theory, to solve practical problems.
【学位授予单位】：河北经贸大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6
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本文编号：1813237