Studies On Several Issues Under Maximum Amount Guarantee

The maximum amount guarantee is the guarantee assumed by the guarantor with fixed maximum amount agreed by the creditor and the guarantor for debt incurred between the creditor and debtor in a certain continuous period. The purpose to create the maximum guarantee, which is a special kind of human guarantee, is to satisfy the need of continuous transactions. The maximum guarantee has been widely used in the economic activity, particularly among banking and financing business, and recognized by judicial practices, theories and regulations of various jurisdictions. China's Guarantee Law and relevant judicial interpretations have provided the maximum amount guarantee, but those provisions are very simple and far from meeting the needs of practice, thus could often arouse controversies. This paper will discuss the period and maximum amount issues of maximum amount guarantee from legal perspective and strive to raise and resolve difficult problems encountered in practice.This paper has four chapters.The first chapter is an overview of the maximum amount guarantee. Starting from the concept and characteristics of the maximum amount guarantee, this paper introduces the maximum amount guarantee in other jurisdictions, particularly focusing on Japan's new legislations on this regard, then moves on to China's legislations on maximum amount guarantee. The values of the maximum amount guarantee in the social and economic life, as well as the significance to study the maximum amount guarantee, are summed up in the last part of the first chapter.The second chapter is comparative analysis of maximum amount guarantee. Since the maximum amount guarantee is a kind of guarantee, it shares many similarities with the general guarantee, but also has many differences. On the other hand, maximum amount mortgage and maximum amount guarantee both have maximum amount, thus can be compared with each other to find out their similar and dissimilar characteristics. Compared with maximum amount guarantee, maximum amount mortgage has been more thoroughly studied, which can serve as reference for the application of maximum amount guarantee. So the author put the two together to make a comparative analysis.The third chapter is about the application, determination and settlement of maximum amount guarantee. Application of the maximum guarantee is one of the core issues of the maximum guarantee. The author mainly discusses the application of the maximum guarantee and the scope of guarantee and puts forward his views on the deficiency of the current laws and regulations. The determination of the maximum amount guarantee is also called the final accounts of maximum amount guaranteed. As the current law is silent on the final accounts of the maximum guarantee, it arouses many the controversies in practice. So the author dwells more on this part, and summarizes several circumstances when the maximum amount should be determined. Finally, the author comments on deficiencies of the current law with regard to the settlement period for the maximum amount guarantee.The fourth chapter is about the provisions of maximum amount guarantee on guarantee period. The author discusses the differences between the general guarantee and the maximum guarantee on guarantee period issues, and when to start and determine the guarantee period of the maximum amount guarantee. Due to lack of consistency in the existing law on the maximum amount guarantee and the general guarantee with regard to guarantee period issues, the author puts forward his views and perfection suggestions.