以物抵债协议法律效力研究

发布时间：2018-07-18 21:20

【摘要】：以物抵债协议,顾名思义就是债务人与债权人约定,以债务人或第三人的财产折价归债权人所有从而消灭债权债务关系的协议。在我国,关于以物抵债协议的法律效力问题一直存在较大争议,因法律对此没有明确规定,导致司法实践中对以物抵债协议之处处理许多困惑,国内鲜有关于以物抵债协议的性质的专业性、深度性和创新性的著作、文章,本人的根本目的在于理清。司法实践中所遇不同签订时间以物抵债协议效力问题,从而解决法律实务中难以解决的债务纠纷问题。本文从两则案例对比出发,将以物抵债协议效力问题按订立时间点的不同,分为三部分进行分别论述。债务履行期界满之前,双方签订的以物抵债协议,其性质和表现虽有别于流质合同和让与担保,但该时间段订立的以物抵债协议亦应与流质合同和让与担保的效力一样归于无效。此时,债权人只可以凭借原债务合同主张其原债权。债务履行期限届满之后,债权人与债务人之间订立的以物抵债协议有效,若当事人另有约定原债务合同无效,此时以物抵债协议的性质当属债的更改,债权人只能依据以物抵债协议主张权利;若当事人之间无关于原债务合同效力的约定,则以物抵债协议的性质当属新债清偿,该以物抵债协议与原债务合同并存,且同时有效,债权人可以凭借以物抵债协议主张权利,亦可以以原债务合同为依据主张权利,具有选择性。以物抵债协议履行完毕后构成代物清偿,此时应认定该协议的效力,若债权人发现标的物发生瑕疵(标的物瑕疵问题分为三种,即标的物本身有使用瑕疵;标的物有权利上的瑕疵;债务人迟延履行给债权人造成损失),此时可按正常的物的买卖合同上买受人的权责来主张权利。
[Abstract]:As the name implies, the agreement between the debtor and the creditor is that the property of the debtor or the third party can be reduced to the creditor's property to destroy the relationship between the creditor and the creditor. In our country, there has always been a great dispute about the legal effect of the agreement on recompense in rem, because there is no clear stipulation on it in the law, which leads to a lot of confusion in the judicial practice of dealing with the agreement of recompense in rem. There are few professional, deep and innovative works on the nature of the agreement of recompense in China, the basic purpose of this article is to clarify. In judicial practice, the problem of the validity of the agreement of paying debts in rem at different time is met, thus solving the problem of debt dispute which is difficult to solve in the practice of law. Based on the comparison of two cases, this paper discusses the validity of the agreement in rem into three parts according to the different time points. Prior to the expiration of the period of performance of the debt, the nature and performance of the agreement signed between the two parties in rem for debt is different from that of the liquid contract and the assignment guarantee, However, the agreement concluded in rem shall be null and void as the liquid contract and assignment guarantee. At this point, the creditor can only rely on the original debt contract claims its original creditor's rights. After the expiration of the time limit for performance of the debt, the agreement concluded between the creditor and the debtor in rem shall be valid. If the original debt contract is void as otherwise agreed by the parties, the nature of the agreement shall be regarded as a change of the debt, The creditor can only claim his rights on the basis of the agreement on rem; if there is no agreement between the parties on the validity of the original debt contract, the nature of the agreement shall be a new debt settlement, and the agreement on rem shall coexist with the original debt contract and shall be valid at the same time, Creditors can claim their rights on the basis of the agreement on rem or on the basis of the original debt contract. If the creditor discovers that the subject matter is defective (there are three kinds of defects in the subject matter, that is, the subject matter itself has the use defect; The subject matter has a defect in rights; the debtor's delay in performance causes a loss to the creditor), at which time the right may be claimed in accordance with the buyer's right and responsibility in the normal contract of sale and purchase of the thing.
【学位授予单位】：沈阳师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6

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