本文選題：以物抵債 + 一般問題　； 參考：《河北經(jīng)貿(mào)大學(xué)》2017年碩士論文

【摘要】：一直以來,我國(guó)法律并沒有對(duì)以物抵債合同進(jìn)行明確的規(guī)定。司法實(shí)踐中,以物抵債合同在多數(shù)情況下被看作無名合同,根據(jù)一般的合同處理規(guī)則進(jìn)行處理;或者直接被看作代物清償?shù)囊环N表現(xiàn)形式,操作中缺乏統(tǒng)一的規(guī)定。在理論方面,民法界的學(xué)者對(duì)以物抵債合同的制度研究較少,只有少數(shù)專家學(xué)者發(fā)表過一些看法。從國(guó)外來看,對(duì)于以物抵債合同的區(qū)分也不明了。本文的主體部分是第二到第五部分。第二部分是以物抵債合同的一般問題,包括以物抵債合同的概念以及同近似合同的辨析。以物抵債合同是經(jīng)過當(dāng)事人合意,用替代物代替原有給付的合同,其成立需要多方面的要素:原債權(quán)債務(wù)有效存在、合同發(fā)生在原有債權(quán)屆滿后、替代給付與原有給付不同、以物代替原有給付、需法律有特殊規(guī)定或者當(dāng)事人意思表示一致等。實(shí)踐中經(jīng)常將其與代物清償、流質(zhì)契約、新債清償?shù)阮愃聘拍钕牖煜�。其�?shí)以物抵債合同作為一個(gè)獨(dú)立存在的合同形式與這些合同有本質(zhì)上的區(qū)別。第三部分是以物抵債合同的性質(zhì)與效力。隨著以物抵債合同數(shù)量的增加,對(duì)其性質(zhì)與效力學(xué)術(shù)界與司法實(shí)踐中卻各執(zhí)一詞,因此對(duì)其性質(zhì)、效力的探討具有較強(qiáng)的實(shí)踐意義。首先應(yīng)當(dāng)以物抵債合同認(rèn)定為諾成合同,一種負(fù)擔(dān)行為。關(guān)于其效力,會(huì)根據(jù)以物抵債合同簽訂的時(shí)間不同而產(chǎn)生不一樣的效力結(jié)果。第四部分是關(guān)于以物抵債合同制度的問題與沖突。以物抵債合同在我國(guó)并不是有名合同,立法上對(duì)其沒有規(guī)定。在司法上,對(duì)以物抵債合同的處理存在混亂,各級(jí)各地法院對(duì)以物抵債合同的性質(zhì)、效力、有效性等問題并沒有一致的處理方法及看法�，F(xiàn)實(shí)中,以物抵債合同因涉及當(dāng)事人較多,各當(dāng)事人之間沖突明顯,主要集中在,債權(quán)人與抵押權(quán)人之間的沖突;一般債權(quán)人與優(yōu)先受償權(quán)人之間的沖突。這些問題與沖突的解決已經(jīng)成為實(shí)務(wù)中有效處理以物抵債合同的關(guān)鍵。第五部分是完善以物抵債合同制度的建議。以物抵債合同數(shù)量繁多,需統(tǒng)一規(guī)制。立法方面,應(yīng)設(shè)立以物抵債合同的專門立法,明確其性質(zhì),效力,確定評(píng)估的規(guī)則;司法方面,頒布司法解釋,指導(dǎo)性案例,裁判規(guī)則等,爭(zhēng)取在各級(jí)法院中對(duì)以物抵債合同有一個(gè)統(tǒng)一的認(rèn)識(shí)與處理結(jié)果。針對(duì)以物抵債合同中當(dāng)事人的沖突,應(yīng)當(dāng)區(qū)分動(dòng)產(chǎn)、不動(dòng)產(chǎn)、先抵后押、先押后抵等情況分別處理;針對(duì)優(yōu)先受償權(quán),建議對(duì)其進(jìn)行登記,防止濫用。通過研究討論,形成了一個(gè)較為合理的以物抵債合同框架,完善以物抵債合同相關(guān)的各個(gè)方面。一方面,為當(dāng)事人之間簽訂以物抵債合同時(shí)提供參照依據(jù),讓雙方當(dāng)事人明確自身的權(quán)利與義務(wù)。另一方面,為法院解決沖突提供一個(gè)指導(dǎo)方向,為最終判決案件提供法律依據(jù)�？傊�,最終致力于構(gòu)建理論,解決實(shí)際問題。
[Abstract]:All along, our country law does not carry on the explicit stipulation to the rem for debt contract. In judicial practice, the contract in rem is regarded as the nameless contract in most cases, which is dealt with according to the general rules of contract treatment; or it is directly regarded as a form of performance of retribution, and there is no uniform stipulation in the operation. In theory, scholars in the field of civil law do not study the system of rem for debt contract, only a few experts and scholars have expressed some views. From a foreign point of view, the distinction between rem and debt contracts is also unclear. The main part of this paper is the second to the fifth part. The second part is the general problem of the contract in rem, including the concept of the contract in rem and the discrimination of the similar contract. The contract of recompense for debt in rem is a contract in which the original payment is replaced by a substitute through the agreement of the parties. The establishment of the contract requires many factors: the original creditor's rights and debts are valid, the contract occurs after the expiration of the original creditor's rights, and the substitute payment is different from the original payment. To replace the original payment with goods, there are special provisions in the law or the parties concerned express the same intention, and so on. In practice, it is often confused with such concepts as substitute settlement, liquid contract, new debt settlement, etc. In fact, as an independent form of contract, recompense contract is essentially different from these contracts. The third part is the nature and validity of the contract. With the increase of the number of debt-for-rem contracts, the academic circles and judicial practice insist on their nature and effectiveness, so the discussion of their nature and effectiveness has a strong practical significance. First of all, the contract should be recognized as a contract, a burden behavior. As to its validity, it will produce different effects according to the time of signing the contract in rem. The fourth part is about the problem and the conflict of the contract system of recompense. The contract of recompense is not a famous contract in our country, and it is not stipulated in legislation. In judicature, there is confusion in dealing with the contract of recompense in rem, and the courts at all levels do not have consistent methods and opinions on the nature, validity and validity of the contract in rem. In reality, there are many parties involved in the contract of recompense in rem, and the conflict between the parties is obvious, mainly in the conflict between creditor and mortgagee, and between the general creditor and priority payee. The resolution of these problems and conflicts has become the key to deal effectively with the contract of recompense in practice. The fifth part is the suggestion of perfecting the contract system of debt in rem. There are many contracts for redeeming debts, which need to be regulated uniformly. In the aspect of legislation, special legislation should be established to make clear the nature and effectiveness of the contract, to determine the rules of evaluation, and to promulgate judicial interpretation, instructive cases, rules of adjudication, etc. Strive for a unified understanding and treatment of debt-for-rem contracts in courts at all levels. In view of the conflict between the parties in the contract of recompense in rem, we should distinguish between movable property, immovable property, first arrival, first deferment, and so on; in view of the priority right of payment, it is suggested to register it to prevent abuse. Through research and discussion, a more reasonable contract framework of rem is formed, and all aspects related to the contract are improved. On the one hand, it provides the reference basis for the parties to sign the contract of recompense in rem, so that the parties can make their own rights and obligations clear. On the other hand, it provides a guiding direction for the court to resolve the conflict and provides the legal basis for the final judgment case. In short, the ultimate commitment to the construction of theory, to solve practical problems.
【學(xué)位授予單位】：河北經(jīng)貿(mào)大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2017
【分類號(hào)】：D923.6
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本文編號(hào)：1813237