代物清偿的立法构建

发布时间：2018-11-03 14:28

【摘要】：代物清偿是债权人实现其债权,消灭债的一种方法。代物清偿是在存在原定债权债务关系的情况下,因为原债的关系的双方当事人有提出以现实的他种给付代替原定给付的合意并且债务人完成现实给付而成立的合同。代物清偿制度在德国、日本以及我国台湾地区的“民法”中都有明确规定,但在我国民法中代物清偿仍没有相应的法律法规,因此代物清偿的相关问题在学术界仍有诸多争议。代物清偿的性质有类似买卖说或互易说、清偿契约说、特殊变更契约说、债务更新说、有偿契约说、要物契约说。但我国的司法实务和理论界通说为代物清偿的要物契约说和有偿契约说,即代物清偿的成立不仅要有双方的合意更要有现实的受领他种给付,同时代物清偿的成立也是以债权人抛弃原定给付的受领为代价的。根据代物清偿在我国司法实践的情况表明,先前的司法实践因对代物清偿相关问题的争议,即法院判决依据的不同,会导致同案不同判结果的发生,有违公平原则。而在2012年判决书上明确认定“代物清偿法律关系”成为公报案例后,代物清偿在判决中有了较为统一的标准,但仍未以立法的形式在我国法律法规中出现,因此代物清偿制度在我国的立法是十分必要的。我国应借鉴代物清偿制度在其他大陆法系国家的立法现状并得到启示,构建代物清偿制度在我国的立法。我国已承认代物清偿制度,同时法院在判决书中亦明确了代物清偿的法律关系。作为一个大陆法系国家,要根据法定形式制定发布具体的法律文件,构成完整的成文法。因此我国应借鉴其他已有代物清偿制度国家成果的精华,对代物清偿的性质以及效力等问题加以界定,使代物清偿制度能早日在我国的民法中得以体现,完善我国的民法体系,对我国的代物清偿法律关系进行指导。
[Abstract]:Subrogation is a method for creditors to realize their creditor's rights and eliminate their debts. Subrogation is a contract formed when there is the original creditor's debt relationship because the parties to the original debt relationship have put forward to replace the original payment agreement with realistic alternative payment and the debtor has completed the actual payment. The system of subrogation is clearly stipulated in the Civil Law of Germany, Japan and Taiwan, but there are still no corresponding laws and regulations in the Civil Law of our country. Therefore, there are still many disputes in academic circles about the settlement of subrogation. The nature of subrogation is similar to the theory of sale or exchange, the theory of settlement contract, the theory of special variation contract, the theory of debt renewal, the theory of paid contract, and the theory of contract of things. However, the judicial practice and theoretical circles in our country have generally said that the contract of goods to be paid for and the contract of compensation, that is, the establishment of the settlement of goods for the purpose not only requires the agreement of both parties, but also needs to receive and pay for other goods in reality. At the same time, the establishment of the settlement of goods at the expense of creditors to abandon the original payment of the payment as a price. According to the judicial practice of subrogation in our country, the previous judicial practice, because of the dispute about the settlement of subrogation, that is, the different basis of court judgment, will lead to the occurrence of different adjudication results in the same case, which is contrary to the principle of fairness. However, in the judgment of 2012, it was clearly recognized that "the legal relationship of settlement of goods by subrogation" became a case in the bulletin, and there was a more unified standard in the judgment of settlement of goods, but it still did not appear in the form of legislation in the laws and regulations of our country. Therefore, it is very necessary to legislate the subrogation system in our country. Our country should draw lessons from the legislation status quo of subrogation system in other countries of continental legal system and get enlightenment, and construct the legislation of subrogation system in our country. Our country has recognized the system of subrogation, at the same time, the court has made clear the legal relation in the judgment. As a civil law country, it is necessary to formulate and issue specific legal documents according to the legal form, which constitutes a complete statutory law. Therefore, our country should draw lessons from the essence of the achievements of other countries, define the nature and effectiveness of the subrogation, so that the subrogation system can be reflected in the civil law of our country as soon as possible, and perfect the civil law system of our country. Guide the legal relationship of subrogation in our country.
【学位授予单位】：延边大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D923.6

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