以物抵债法律问题研究

发布时间：2018-05-07 19:08

本文选题：以物抵债 + 诺成合同　；参考：《华中师范大学》2017年硕士论文

【摘要】：以物抵债是债务人以他种给付代替原定给付从而使原债归于消灭的法律行为。当前我国社会生活及司法实践中存在大量以物抵债,由其引起的纠纷也为数不少,但我国法律却对此缺乏相应的规定,理论界也存有较大争议,导致司法认定不一,呈现同案不同判的现象,当事人的正当利益得不到保障。故应对以物抵债制度进行研究,探寻相应的完善措施,使其能更好实现应有的制度价值。本文除序言和结语外,一共分为四大部分。序言部分是对为何研究以物抵债的说明。从当前实践中存在的问题引出研究以物抵债具有十分重要的理论和现实意义,对学界关于以物抵债研究进行了文献综述,展现了当前我国以物抵债的研究现状。第一部分探讨了以物抵债的正当性。主要从意思自治原则、法的效率价值和利益均衡理论三个方面进行阐述,意思自治原则为以物抵债存在提供了理论基础,法的效率价值从经济效率增长和社会效率获得角度论述了以物抵债存在具有必要性,利益均衡理论体现了以物抵债有助于实现多方主体利益共赢。第二部分论述了以物抵债的法律定性。首先梳理了学界关于以物抵债的诸种学说,主要有实践合同说、诺成合同说和处分行为说三种主流观点。其次对上述诸说进行评析,“实践合同说”将以物抵债与代物清偿等同,实践中对其援引代物清偿的相关规定,“处分行为说”不承认以物抵债是一种契约关系,两者均存在不合理之处。本文认为,“诺成合同说”将以物抵债认定为一种契约关系,更符合现实和以物抵债的基本原理,该契约具有有因性、从属性和无偿性三个法律特征。第三部分研究了以物抵债的法律效力,主要分为有效、无效、可变更或可撤销三种情形。首先,阐述了具有法律效力的情形有以物抵债合法有效成立且符合《合同法》规定和债务清偿期届满后已实际履行两种。其次,探讨了以物抵债的无效情形,主要有原债权债务关系不成立、无效或被撤销,以物抵债协议自身无效或被撤销,于债务清偿期届满前订立的以物抵债,约定将担保物权利转让给债权人的以物抵债和为消灭原债而成立新债的以物抵债。最后,分析了可变更或可撤销的以物抵债有为清偿旧债而负担新债成立的以物抵债和当事人因胁迫或重大误解而后反悔撤销以物抵债合意两种情形。第四部分论述了我国以物抵债的制度完善。通过分析当前以物抵债面临的问题,主要有:现有关于以物抵债的规定层级过低,类型及效力判定有失偏颇,以物抵债与买卖合同相混淆,请求权基础存在争议。进而对完善我国以物抵债制度提出了建议。即要合理运用意思表示解释规则,在《合同法》中将以物抵债明确规定为一种有名合同,完善《物权法》和《担保法》中以物抵债的相关规定,同时建立合理的评估制度和科学统一的折算标准,为处理实践中的纠纷提供明确的指引。本文的创新之处在于确定以物抵债的法律性质并对其法律效力进行积极探讨,为将来完善我国以物抵债制度提供理论基础。
[Abstract]:The debtor's debt is the legal act of the debtor in place of the original payment by the debtor in place of the original payment. The current social life and judicial practice in our country have a large number of debts and a lot of disputes caused by it, but there is a lack of relevant provisions in the law of our country and there is a great controversy in the theoretical circle, which leads to the judicial confirmation. Different cases of the same case, the legitimate interests of the parties can not be guaranteed. Therefore, we should study the system of the debt set up and explore the corresponding improvement measures so that it can better realize the value of the system. In addition to the preface and conclusion, this article is divided into four parts. The preface part is the explanation of why research is in debt. The existing problems in the current practice lead to the very important theoretical and practical significance of studying the debt to be in debt, and make a literature review of the study on the study of the debt set off, and show the current research status of the debt set off in our country. The first part discusses the justifiable nature of the debt set off, and the main purpose is the principle of autonomy of the meaning, the efficiency value and the benefit of the law. The theory of interest balance is expounded in three aspects. The principle of autonomy of meaning provides a theoretical basis for the existence of the existence of debt. The efficiency value of the law expounds the necessity of the existence of the existence of a debt in terms of economic efficiency and social efficiency, and the theory of interest balance reflects the benefit of multiparty main interests to achieve a win-win situation. The theory of interest balance is conducive to the realization of the multiparty main interests. This paper discusses the legal nature of the obligation to offset debt. First, it combs the various theories of the academic circles about the debt to the debt, mainly including the practice contract theory, the nocheng contract and the disposition of the three main views. Secondly, it evaluates the above theories, and the "practice contract theory" will be equivalent to the debt and the recharge of the agent, and in practice, it invoked the agent to pay off. According to the relevant regulations, "the action of disposition" does not admit that it is a contractual relationship, and both of them are not reasonable. This article holds that "the contract theory of noocheng" will be regarded as a kind of contractual relationship, which is more in line with the reality and the basic principle of the debt. The contract has the three legal characteristics of the cause, the attribute and the unpaid nature. The third part studies the legal effect of taking things out of debt, mainly divided into three cases, which are effective, invalid, changeable or revocable. First, it expounds that the situation with legal effect is valid and valid and is in accordance with the contract law and the expiry of the debt payment period. Secondly, it discusses the invalidity of the debt. In the case of the original creditor's right and debt relationship, which is ineffective, invalid or revoked, the debt contract itself is invalid or revoked, to set off the debt before the expiration of the debt expiry date, and to set up a debt to offset the debt of the creditor and to set up a new debt for the elimination of the original debt. Finally, the analysis can be made to change or withdraw. In the fourth part, the system consummation of the debt set up in our country is perfected in the fourth part of the two situations. The classification level is too low, the type and the validity of the decision are biased. The basis of the right of claim is disputed, and the basis of the right of claim is disputed. And then it puts forward some suggestions to improve the system of property right in our country. At the same time, the relevant provisions in the guarantee law, and the establishment of a reasonable evaluation system and the standard of conversion of scientific unity, provide clear guidance for dealing with disputes in practice. The innovation of this article is to determine the legal nature of the debt and actively explore its legal effect, and to improve the system of the debt set up in our country in the future. For theoretical basis.

【学位授予单位】：华中师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923

【参考文献】