A Research Of Guaranty Liability

Liability comes from regulations of law. No regulations of law, there would be no liability. At this point, civil liability and criminal punishments are the same. The guarantee Law of the People's Republic of China sets up fundamental regulations from article 21 to article 32 concerning the guaranty liability. The legal relationship concerning guaranty, with guaranty liability as its core, is very complicated. The existence and exemption of guaranty liability directly influence realization of the creditor's claims. The guarantor's liability varies with its faults, big fault, big liability: small fault. small liability; no fault, no liability. Then, how we can precisely guaranty liability in theory and practice? This dissertation tries to make a comparative study of the guaranty liability in theory and practice and elaborates the author's own understanding and explanation of five aspects guaranty liability: existence of guaranty liability, nature of guaranty liability, form of guaranty liability and the form of bearing and invalid guarandy liability..The establishment of guaranty liability Guaranty contract liability can be divided into valid contract liability and in valid contract liability. The valid guaranty liability contract concerns qualification of the guarantor and form of the guaranty liability contract. The academic field has a various opinions on "qualification of a guarantor" and no unanimous opinion is reached. This dissertation put forwards the author's own viewpoints in the problem that "ability to pay off for creditor's debts" is taken as one of the pre-requisites of the qualification of being a guarantor. This dissertation puts forwards the opinion that if there exists a certain amount of paying off ability, a guarantor should be taken as qualified, the law should ask for full paying off ability. As for the form of guaranty contract, only written contract is acceptable. But this dissertation holds the view that when no written contract exists, if a guarantor volunteers to bear guaranty liability, his action is also valid in accordance with the principle of freedom of contracting.The nature of guaranty liability This dissertation analyzes different viewpoints of the academic field, absorbing some acceptable viewpoints and hold the viewpoint that guaranty liability is a unilateral liability (a compensated liability without consideration), a compensatory liability (general liability having right of plea for preference claims), a secondary liability, a probable liability (not a necessary liability), a paying liability for others. This dissertation also gives reasons why it has five characteristics and also makes some analysis on the contradicting points in Guaranty Liability Law of China, which are not in accordance with international common practice.The scope of guaranty liability The scope of guaranty liability refers to the scope regulated by law of contracted by the parties on which the parties bear liability. The scope of guaranty liability islimited by secondary characteristics of guaranty liability, regulation of law and promises of the contracted parties. This dissertation, after making a comparative study on foreign and Chinese guaranty law, hold the view that Guaranty Law of China defines the scope of guaranty liability and is applicable. This dissertation makes some critical analysis on the problem that joint liability is presumed when no promise or no clear promises exist.The form of guaranty liability and the form of bearing The form of guaranty liability refers to general liability or joint liability that the guarantor should bear. The difference of the two liability form lays in that whether the supplementary obligation exists in the guaranteed debt and principal debt. The general guaranty liability means that supplementary characteristic exists in guaranteed debt and principal debt. The guarantor has right of plea for preference claims. Only under the condition that the debtor cannot pay off the debt after arbitration and litigation, the guarantor shall bear the res...