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On The Guarantee Obligation

Posted on:2005-05-27Degree:MasterType:Thesis
Country:ChinaCandidate:Y F ChenFull Text:PDF
GTID:2156360152470837Subject:Law
Abstract/Summary:PDF Full Text Request
Guarantee system as an important component of Guarantee Law system,which have gone through thousands of years but still been with power vitality. Guarantee Law carried on the systematic express provision for the first time in 1995,its appearance, has offered concrete guidance in solving the legal dispute of guarantee in the social economic life. However, because the legislative aim of Guarantee Law is to ensure the realization of creditor's rights, so, the regulation in many aspects of Guarantee Law demonstrates for the inclination of ensuring creditor's rights and aggravating guarantor obligation .In this way ,in guarantee system ,the guarantor's obligation is aggravated. And guarantee obligation is undoubtedly the core of the legal relation of guarantee system, in fact ,the expansion of the legal relation of guarantee ,which is around guaranteeing obligation and carrying on. In line with the legal proverb that law is kindhearted and just art, based on the balance of the benefits of the debtee, debtor and guarantor. This paper , based on " the General Rule of the Civil Law (1987)" , "Suggestions on carrying out several questions of the General Rule of the Civil Law by the Supreme Judicial Court (1988)","Provision on handling the economic contract dispute case about several questions that are guaranteed by Supreme Judicial Court(1994)"," Guarantee Law(1995)"," About suitable to apply the explanation of several questions of the Guarantee Law(2000)","Code drafts of the Civil Law(2003)" , studies separately guarantee obligation's nature ,way, range, occurring ,period and alteration. These questions ,to that the rights and obligations of the party in the legal relation of the Guarantee ,are influenced very big . The paperpoints out , "guarantee responsibility" not in fact the legal liability in general meaning on nature, but an obligation of the guarantee contract, namely guarantee debts ,like ordinary contract obligation. When the parties have not agreed on or agreed on the way to guarantee obligation unidentifiedly, should infer it to be generally guarantee obligation not related guarantee obligation .When the parties have not agreed on or agreed on unidentifiedly to the range of guarantee obligation ,should infer that its range includes main debt and interest ,damage awards and expenses that creditor's rights realized ,and should exclude the penalty. In allusion to complicated " law trap "that be designed in Guarantee Law(1995) and its judicial explanation(2000) artificially. This paper ,analyzing and summing up legislative mode of guarantee period ,proposes dividing guarantee period into agreed period and demanded period and suggest changing the different invalid way to general guarantee period and related guarantee period respectively, this is essential .To the respect on the influence emerging in change of guarantee obligation when person's guarantee and guarantee of thing are compatible ,We should adhere to the equal spirit of the guarantor and real right person, bear corresponding obligation fairly.
Keywords/Search Tags:guarantee obligation, guarantee period, nature of Guarantee obligation, coexistence of guarantee and security interest
PDF Full Text Request
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