Research On Several Legal Questions Of Guarantee

This article tries to discuss several legal questions of guaranteecomprehensively and thoroughly which are concerned by academiccircles and practical circles. As far as theoretical aspect, the authoranalyzes and examines such questions: questions of formal ofguarantee contract, questions of counterplea rights of first suing,questions of procedural prescription of guarantee contract andquestions of relation between guarantee and untypical guarantee. Atthe same time, referring to other country's legislative conditionsand according to our country's actual conditions, the author pointout the shortcomings of such questions. The whole article includesfour parts: Part one is about questions of formal of guarantee contract.Here, the author introduces a case firstly and points out that thefocal question is if new contract relation will form when creditorhold his request after the guarantee period. As far as this question isconcerned, the author points out that a guarantee will form whenparties writes a contract. However, there must be parties'explicitmeaning before a contract forms. That is to say that guaranteecontract is very important for guarantors, so there must beguarantors'explicit meaning, or guarantee contract can't form. Ourcountry'guarantee law rules that written pattern is required ifcreditors sign a contract with guarantors. The aim of the rule is to -44-articulate that the guarantee contract has been signed and to makethe evidential effect of guarantee contract clear. The pattern ofsigning guarantee contract includes three kinds: signing a writtenguarantee contract; giving a guarantee letter; signing guaranteeclause in main contract or signing or stamping in guarantee column.So the author points out that new guarantee relation can't form inthe case for the request is put forward after guarantee period. Part two is about questions of counterplea rights of first suingin guarantee. Here the author points out that guarantors havecounterplea rights of first suing in general guarantee. That is to sayguarantors can refuse the creditors'request if the creditors have notsued the debtors and applied the court to execute the debtors'property. What the most important is there is counterplea rights offirst suing only in general guarantee. There are two characters ingeneral guarantee. First, general guarantee is a kind of acceptedguarantee pattern between parties. Only when parties agree uponthat they will bear general guarantee liability, the general guaranteecan form. If parties don't agree upon each other or the arrangementis not explicit, the general guarantee will not form. Guarantorsshould not bear guarantee liability until debtors can't fulfill theirdebts. Here, the author point out particularly that the presuppositionof general guarantee is that the debtors can't fulfill their debts. Notonly the period has surpassed, but also the debtors have lost the -45-ability of fulfilling. Or there is no sense to rule general guarantee.Moreover, the author points out another question. That is theguarantors abandon counterplea rights of first suing. But guarantorsmust abandon the counterplea rights of first suing explicitly, or lawdeduces that they have the rights still. Part three is about the questions of procedural prescription ofguarantee contract. Here, the author points out that the beginningtime of period of procedural prescription of guarantee contract isdifferent from guarantee period's. The beginning time of guaranteeperiod is that the deadline of debtors'fulfilling has completed, butthe beginning time of procedural prescription of guarantee contractis when creditors can point out the request in law. It is whenguarantors refuse to fulfil the guarantee liability, the period ofprocedural prescription of guarantee contract begins. At the sametime, we should notice that the period of procedural prescr...