免责的债务承担合同性质和效力研究

Research on the Nature and Effect of Contracts for Exempted Debt Assumption

从《合同法》时期到《民法典》时代,免责的债务承担制度都是实践中一项重要制度,在债务人与承担人缔结债务承担的合同时,认定合同的利益第三人合同性质,在债权人同意前,债务承担合同已经对债务人和承担人产生效力;债权人同意后,允许承担人援引原因关系的抗辩对抗债权人;若债权人拒绝,合同尚发生履行承担的效果。在债权人与承担人缔结债务承担的合同时,肯定债务人可以拒绝发生免责的债务承担效果,经债务人拒绝后,债务承担合同尚发生债务加入的效果。

The rule for exempted debt assumption has long been an important system in practice both under the Contract Law and the Civil Code. When the debtor and the assuming person conclude the contract on debt assumption, if the contractual nature for the interest of third parties under the contract is recognized, prior to the creditor’s consent, the contract on the debt assumption has already produced the effect on the debtor and the assuming person;following the creditor’s consent, the assuming person is allowed to invoke the cause of the relationship to defenses against the creditor;and in case of the creditor’s refusal, the contract is still in effect for the performance of the assumption. When the creditor and the assuming person conclude the contract on the debt assumption, if it is recognized that the debtor may refuse the effects of the exempted debt assumption, upon such refusal, the contract on the debt assumption is still in effect for an accession to the debt.