"Understanding and Application of the Judicial Interpretation of the Security System of the Civil Code of the Supreme People's Court" pages 176-178
Article 552 of " Civil Code " stipulates: "The third party and the debtor agree to join the debt and notify the debtor If the obligee or a third party expresses its willingness to join the debt to the creditor and the creditor fails to expressly refuse within a reasonable period, the creditor may request the third party to bear joint and several debts with the debtor within the scope of the debt it is willing to bear. " Accordingly, debt joining means that a third party joins the debt and assumes joint debts to the creditor as a new debtor together with the original debtor. Some scholars have verified that there was no provision for debt inclusion before the Civil Code, and the normative document first appeared in Article 17 of the "Minutes of Discussions of the Higher People's Court of Jiangsu Province on Several Issues Concerning the Application of the Contract Law of the People's Republic of China (1)". This article stipulates: "Debt participation refers to a debt-bearing method in which a third party reaches a tripartite agreement with a creditor or a debtor, or a third party reaches a bilateral agreement with a creditor, or a third party unilaterally promises to the creditor that the third party will perform the debtor's debt, but does not exempt the debtor from performing its obligations."
Similar systems to the debt participation system include debt transfer and joint liability guarantee. The debt joiner, the transferee of the debt transfer, and the joint liability guarantor are all responsible for the creditor's claims with all their own properties. This is what the three have in common. In terms of differences, the difference between debt joining and debt transfer is that in debt joining, the third party is liable to the creditor along with the original debtor, so debt joining is also called concurrent debt transfer. In debt transfer, in principle, the original debtor no longer serves as the debtor, but the third party serves as the new debtor. Therefore, debt transfer is also called exempted debt transfer. Compared with debt transfer, debt joining obviously provides more adequate protection to creditors.
The system most similar to debt joining is the joint liability guarantee in guarantee. What they have in common is that the debt joiner and the joint liability guarantor both have the function of guarantee for the debtor's debt. Both have the obligation to perform the debt, both bear the relevant debts, and both are responsible for the debt The obligee enjoys the rights of the original debtor such as the right of defense and the right of offset , but there are the following fundamental differences between the two:
First, a guaranteed debt is a debt for which the guarantor assumes responsibility when the debtor fails to perform the debt or an agreed situation occurs, and the debt is subordinate. In other words, the debt was originally the debtor's debt, and the guarantor assumed the debt of the original debtor. It was a debt, not its own debt. In debt joining, when the joiner joins the debt, there is no issue of subordination. After the debt is added, the debt borne by the joiner has no master-slave relationship with the original debt. Accordingly, the validity of the debt addition contract is not affected by the validity of the original contract, and its validity exists independently. If the original contract is invalid, the debt added to the contract will not be affected by the invalidity of the original contract. In other words, if the debt joining contract itself has no invalid factors, the debt joining contract itself is valid. The validity of the guarantee contract will be affected by the validity of the main contract. If the main contract is invalid, the guarantee contract will be invalid, unless otherwise provided by law.
Second, the guarantor enjoys the dual protection of the guarantee period and the statute of limitations system. The guarantee period system is exclusively enjoyed by the guarantor. After the third party joins the debt, it cannot enjoy the bonus protected by the guarantee period system and can only be protected by the statute of limitations system.
Regarding whether a third party has the right of recourse against the original debtor after joining the debt, one view is that this depends on the agreement between the debtor and the original debtor.
Another point of view is that since the third party in the debt joining is in a joint debt relationship with the debtor, after the third party pays off the debt, it has the right to require the original debtor to pay its share.
We believe that according to the provisions of Article 552 of the "Civil Code", once the debt joining is established, a joint debt relationship is established between the debtor and the original debtor, and according to the provisions of Article 519 of the "Civil Code", joint and several debtors have mutual rights of recourse. Therefore we prefer the latter view.
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