代物清偿制度研究-法律·民商法学专业论文.docx

摘要上海 摘要 上海师范大学硕士学位论文 万方数据 万方数据 可以有别于一般代物清偿对瑕疵部分承担瑕疵担保责任的做法，只用在这种情况 下，明确债的关系还存在，原定债务仍应由债务人实行。其四，代物清偿中差额 部分的衡量要结合当事人的主观意志。笔者通过主张将代物清偿制度在制定《民 法典》的契机下，增进合同法，来更好地为市场交易及司法实践提供法律规范的 指导。 关键词：代物清偿；法律关系；行为认定；履行；瑕疵 II Sha Shanghai Normal University Master of Philosophy Abstract Abstract Datio in solutum as foreign mature legislative cases in the civil law countries and regions, has been proven by the judiciary that it can be solved in the judicial practice to appear more and more in his pay instead of the scheduled payment to the debt destroyed phenomenon. Also datio in solutum case more and more, but there is no legislation on the provisions of datio in solutum in our country. Theoretical study of generation of material discharge system, studying datio in solutum of scholars and corresponding writings is not a lot. The judicial practice process, only some similar concepts, and has certain transplantation. Through guiding principle stipulated in the law, and the comparison of similar system, for cases of datio in solutum, the judge can make a decision in the judicial activities, but it is far from the need more and more realistic. In this paper, based on the background of topics, datio in solutum is studied. Datio in solutum in our country draw lessons from a large number of mature legislative cases of continental law system countries. Among them, datio in solutum of Germany, Japan in the judicial practice for many years test conditions are mature, but on some specific issues to explore, conclusions are sometimes very different. This requires our country in the legislation in the absorption and learning at the same time, study carefully and seriously. Drew lessons from foreign legislation and theoretical research results, and combined with the actual situation in our country, set by the method of synthesis and operability. Our country Taiwan area is part of our territory, and the mainland are closely linked, both in the cultural inheritance and in legislation and judicial pra