並存的債務承擔中債務移轉問題之分析

The Analysis of Debt Transfer in Concurrent Assumed Debt

並存的債務承擔與法有關之重要評價點在於承擔人對債務之清償具有直接的法律上或經濟上之利益，為此而主動加入債之關係，雖其亦發揮著擔保功能，但此為並存的債務承擔發生連帶債務法效果之客觀使然，並非其重要評價點。析而較之，其與保證截然有別，故《擔保法》第23條與《擔保法司法解釋》第29條關於保證之規範並不能適用於並存的債務承擔。倘原債務人將其所負之債務移轉於他人時，雖毋須經承擔人之同意即可發生效力，但為維護承擔人自身之追償利益，其可主張債務移轉行為僅發生相對效力。

For the reason that the important evaluation point of the concurrentassumed debt lies in that the new debtor has direct interests in the debt repayment, in law or economy, he tends to join in the debt. Although the concurrent assumed debt also has guarantee function, which is an objectiveresult of the fact that joint and several liability is a certain consequence of the concurrent assumed debt, and it is not its important evaluation point. Through analysis, we found that the concurrent assumed debt is quite different from guarantee. Therefore, the regulation of guarantee in the Article 23 of the Guarantee Law and the Article 29 of the Interpretation of the Guarantee Law cannot be applied in concurrent assumed debt. If the original debtor transfers his debt to others, he can claim only relative effect occurs, for interests of the new debtor, though his agreement is unnecessary.