以物抵债的效力研究

发布时间：2019-03-25 11:11

【摘要】：以物抵债类案件在司法实践中频发,我国民法上对此没有明确规定,法官对以物抵债效力的认识不统一,导致经常出现同案不同判现象。有的法官将其视之为虚假诉讼同义词,有的法官则以"流质契约"直接否定其效力,绝大多数法官则将之视为"代物清偿",坚持要物性。本文阐明以物抵债在法律上不存在漏洞,法官应根据以物抵债形成时间、履行的状态对其进行分类,并通过准用、类推适用相关的概念或制度的方法形成的准确系统的裁判规则。法官在审理以物抵债的案件中要注重个案差异,对不同类型的以物抵债进行区别对待,其中的流质契约、让与担保因违反法律的强制性规定应被认定无效,而对债的更改、新债清偿、代物清偿三种类型的以物抵债,在肯定其效力的同时应注意他们之间的区别。对代物清偿,应严格限定在一定范围内,不能做扩大解释。对债的更改、新债清偿类案件应遵从合同自由及意思自治原则,充分肯定其效力。法官在遇到以物抵债类案件后,要对协议中的意思表示进行正确解释,树立物尽其用的价值取向。
[Abstract]:The cases of paying debts with property frequently occur in the judicial practice, which is not clearly stipulated in the civil law of our country, and the judge's understanding of the effect of paying debts with goods is not uniform, which often leads to the phenomenon of different sentences in the same case. Some judges regard it as a synonym for false litigation, some judges directly deny its validity by "fluid contract", and the vast majority of judges regard it as "settlement on behalf of property" and insist on physical property. This article clarifies that there are no loopholes in the law to pay the debt with property, and the judge should classify it according to the time when the debt is paid by material and perform it, and pass the quasi-use. An accurate and systematic rule of adjudication based on the application of relevant concepts or systems. The judge should pay attention to the differences in individual cases and treat different types of debt with property in the trial of cases in which the contract of fluid quality, the guarantee and guarantee should be found to be null and void in violation of mandatory provisions of the law, and the change of the debt should be made, and the debt should be changed because of the violation of the mandatory provisions of the law. While affirming the validity of the new debt, we should pay attention to the difference between them while paying off the new debt and paying off the three types of debt on behalf of the property. The payment of substitute property should be strictly limited within a certain range, and can not be extended to explain. For the change of debt, the new debt settlement cases should abide by the principle of freedom of contract and autonomy of will, and fully affirm its validity. The judge should correctly explain the meaning of the agreement and set up the value orientation of making the best use of things.
【学位授予单位】：内蒙古大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.3

【相似文献】