代物清偿制度的发现与构建

The Discovery and Construction of Datio in Solutum

文章针对以物抵债这一在司法实践中常见的现象,通过制度梳理,发现其中的代物清偿规则,明确界定代物清偿的本质在于受领他种给付以清偿原负担的给付。他种给付的债的原因仍在于原来的债之关系。代物清偿合同性质上是一种诺成合同,而非要物合同。代物清偿不同于为了担保而给付,也不同于新债清偿。对于以物抵债协议的性质若有疑义,应遵循有利于债权人解释的规则,解释为新债清偿对债权人更为有利,所以,应解释为新债清偿。如果债务人依照约定,交付标的物,即可以发生清偿的效力,债之关系消灭。但如果所提供的标的物有物的瑕疵或权利瑕疵,债权人可以要求债务人承担瑕疵担保责任。债权人还可以请求恢复到原债之关系上,并要求恢复原债之关系上的担保等从权利。

As datio in solutum is common in legal practice,this thesis has discovered the datio in solutum rules and clarified that the nature of datio in solutum is the acceptance of a new payment instead of the original payment.The reason of the new payment lies in the original debt relationship.The contract of datio in solutum has the nature of consensual contract,rather than real contract.Datio in solutum differs from payment for security as well as paying with a new debt.When it s doubtful with the contract of datio in solutum,the interpretation should be to the benefit of the creditor and the contract should be treated as payment with a new debt.The debt relationship terminates when datio in solutum comes into effect.However,if there exist defects with new payment,the debtor should undertake the liability for warranty according to the original debt relationship.The creditor can request a reversion back to the original debt relationship,as well as the recovery of the subordinate rights such as security.