On Counterplead Right Of Guarantor

Counterplead right of guarantor, the important right of guarantor obtained with the foundation of his guaranty, means the right enjoyed by guarantor to contradict the requests of obligee and to refuse or delay bearing guaranty liability according to certain grounds of opposition when obligee asserts the request of guaranty liability to guarantor. Broadly speaking, guaranty legal relation should include three contractual relations and three interested persons, that is, the relation of obligatory right and debt between obligee and debtor, the clientage between debtor and guarantor, and the guaranty relation between guarantor and obligee. So the Counterplead right of guarantor to obligee comes from not only the guaranty contract between the two parties, but also the major contract between obligee and debtor. Thus guarantor has both the exclusive and general Counterplead rights. The guaranty of supervision over special payment for special purpose and the guaranty of registered capital in Guaranty Law of our country are not qualified with the legal concept of the guaranty of debt, but in practical life, it does exist that the Counterplead right of those two guaranties can only be regarded as no-responsibility Counterplead right of special guarantor.General Counterplead right is a kind of Counterplead right enjoyed by guarantor to give a refusal on the basis of the Counterplead right of the guaranteed debtor of the major contract when obligee request guarantor to perform the guaranty of debt. It essentially belongs to debtor's basic and normal Counterplead right. The competence of guarantor's Counterplead right is the same as debtor's. Meanwhile, because of the independence of guaranty, the general Counterplead right of guarantor is not limited whether debtor surrenders it or not. General Counterplead right includesthe counterplead rights of discontinuance, of prescription, of termination of major contract, of simulations performance and of no agreement.Exclusive counterplead right is a kind of counterplead right directly enjoyed by guarantor to counter debtor's request right on the basis of the subordination to and relative independence from guaranty contract and it is not predicated on the counterplead right of the debtor of major contract. This exclusive counterplead right is only enjoyed and performed by guarantor directly and it excludes debtor from enjoying and performing it. It includes the counterplead rights of invalidity of major contract, of guaranty range, of prior appeal, of priority of material guaranty, of special exemption from responsibility, etc.On those kinds of counterplead rights of guarantor mentioned above, this treatise explains the definitions, important conditions, legal consequences, limitations of performances, and suspicious problems in present judicial practices respectively and in view of those problems it gives some suggestions. For example, in the counterplead right of discontinuance, if debtor performs the right of discontinuance beyond due time or surrenders to perform it, it doesn't effect guarantor to perform counterplead right of discontinuance. This treatise holds the opinion that the stipulation of the twentieth articles of Guaranty Law that "if debtor surrenders the counterplead right on debt, guarantor still has counterplead right" should be explained more broadly. The situation that debtor doesn't perform discontinuance right or that debtor surrenders discontinuance right before obligee makes the request of debt should also be regarded as that debtor surrenders the counterplead right on debt. In the counterplead right of prescription, that debtor fulfils obligation on his own will beyond prescriptive period of appeal should be regarded as that the new obligatory right and debt is founded and guarantor doesn't continue the guaranty responsibility automatically. In the counterplead right of priorappeal, the stipulation of the twenty-fifth article of Explanation of the Supreme People's Count that, if obligee of general guaranty appeals debtor and guarantor t...