论以物抵债协议的类型化适用

On the Typed Application of the Debt-in-kind Agreement

类型化既是法学研究的方法,也是解决司法实践中疑难复杂案件法律适用问题的有效路径。从订立目的、达成时间、表现形式、内容实质属性等方面来看,以物抵债协议呈现出多种类型,引发的法律后果亦存在较大差异,对以物抵债协议的性质及效力的认定不能简单套用传统民法中的代物清偿制度。在债务清偿期届满后达成的以物抵债协议采诺成性合同观点的前提下,亦应考虑其与原债务之间的牵连关系,包括受原债务法律行为效力变化、标的数额增减、时效抗辩等因素的影响;在债务清偿期届满前达成的以物抵债协议,虽然具有非典型担保性质,但也要区分抵债物是否交付,分别适用合同与担保制度的相关规定。反思、检讨以物抵债协议性质的认识过程与现代合同理念发展、民法逻辑体系强制与现实交易需求之间的关系,有利于完善民法典体系化功能,填补法律漏洞,统一非典型合同的法律适用规则。

Typification is not only a method of legal research,but also an effective way to solve the difficult problem of legal applicability in judicial practice.Making analysis from the perspective of the purpose of concluding the contract,the establishing date,the manifestation and the content attribute,the types of debt-in-kind agreement are diverse and the legal consequences are also different.The determination of its legal nature and effect cannot be simply regulated by applying the theory of datio in solutum in traditional civil law.When take the condition that the debt-in-kind agreement reached after the debt repayment period expires is regarded as the consensual contract,it should also be considered that there is a certain correlation or joint relationship between the debt-in-kind agreement and the original debt while the debt-in-kind agreement is affected by factor such as the effectiveness of the original legal relationship between creditor's rights and debt,changes in the object of debt,and the defense of limitation.Although the debt-in-kind agreement reached before debt repayment period expires has the atypical guarantee nature,it should also distinguish whether to deliver the thing used for payment,and apply the relevant provisions of the contract and the guarantee system respectively.Reflecting and reviewing the relationship between the debt-in-kind agreement and the development of modern contract ideas as while with the compulsion of the civil law logic system and the actual transaction needs will help to improve the systematization function of the civil code to fill the legal loopholes and standardize the legal application rules of atypical contracts.