清偿型以物抵债协议中债务人选择权的 证成与行使规则

中图分类号：DF525 文献标志码：A

Abstract： The "Supreme People's Court's Interpretation on Seueral Issues Concerning the Application of the General Prouisions of the Contract Code of the People's Republic of China" only clarifies the creditor's option regarding the settlement-type debt repayment by property agreement，without touching upon the debtor's option. This has sparked much debate in the academic circle. When there is no special agreement between the parties，the debt repayment by property agreement is regarded as a new debt repayment， and the original debt and the new debt coexist，thus giving rise to the issue of option. Granting the debtor the option not only conforms to the basic rules of the debt of choice but also facilitates the realization of the creditor's rights and does not constitute a breach of the new debt. The exercise of the debtor's option must follw specific rules，mainly including the content，period and method of exercise：the content of the exercise needs to be distinguished based on whether there is a third party or not；only when there is no third party can the debtor make the choiceby himself；the option arises when the agreement is reached and may be extinguished until the creditor files a lawsuit；the method of exercising the option can be referred to the application of the debt of choice. When the option cannot be exercised，it can be remedied through deposit and other means.

Key words： clearing-type property-for-debt agreement； debtor's option； new debt repayment; exercise rules;remedial method

随着我国市场经济体制的持续深化发展，商事交易模式也日趋多样化。（剩余13942字）