On The Plea Rights Of The Guarantor

Security of creditor's right is an important legal rule to protect creditor's interest in civil activities. There are two types of security in terms of subject of security responsibility, security by person and security by goods. Guarantee is a security provided by a third party other than debtor with its all credits and assets, and thus the primary type of security by person.Guarantor's right to defense is an important right acquired on the basis of providing guarantee to debtor's obligation, and is also the only legal mechanism to protect guarantor's interest in the guarantee relationship. Guarantor's right to defense is the right to defend against creditor's claim, to refuse, defer, mitigate or exempt from the guarantee responsibility based on certain reasons, when creditor seeks guarantee obligation from the guarantor. Viewed from the nature aspect of right, guarantor's right to defense is the corresponding counterpart of creditor's right to claim. There are three types legal relationships between creditor, debtor and guarantor in a guarantee, the credit and debt relationship between creditor and debtor, the entrusting relationship between debtor and guarantor, and the guarantee relationship between guarantor and creditor. The existence of guarantor's right to defense is indispensable from the formation of guarantee contract. Because of the co-existence of collateral and independent, non-compensation and unilateral, formation upon promise and formality characteristics, guarantor's right to defense also takes on the nature of independent, defensive and statutory.The guarantee relationship at least includes, a master contract formed between creditor and debtor, and a guarantee contract entered between guarantor and creditor, which is subordinate to the master contract. Therefore, guarantor's right to defense derived from guarantee contract shall include two types. One type is debtor's defense based on the master contracted entered between creditor and debtor, which is also enjoyable by guarantor and is the general right to defense of guarantor. The other type is guarantor's defense based on guarantee contract, which is not enjoyed by debtor and is the exclusive right to defense of guarantor.Guarantor's general right to defense is the right to refuse creditor's request for guarantee obligation based on debtor's right to defense. This general right to defense is based on the internal relationship between guarantor and debtor, and is a statutory legal right to defend against creditor's request for guarantee responsibility, refuse or defer the performance of guarantee obligation independently in its own name in accordance with statutory or stipulated reasons. The nature of general right to defense is debtor's principle and normal defense. The legal characteristics of guarantor's general right to defense include the following four aspects. First, Guarantor may exercise debtor's general right to defense in both general guarantee and joint and several guarantee. Second, Guarantor's general right to defense shall not disappear because of debtor's waiver. Third, General right to defense is against certain causes in the performance of master contract and debtor may also refuse or defer creditor's request upon such causes. Fourth, Guarantor exercises general right to defense in its own name rather than as debtor or agent of debtor. General right to defense includes, cancel defense, time bar defense, simultaneous performance defense, latter performance defense, master contract termination defense and counter-argument defense.Guarantor's exclusive right to defense is guarantor's immediate defense against creditor's request based on the subordinate and relatively independent nature of guarantee contract, and not related to debtor's defense. Guarantor's exclusive right to defense shall only be enjoyed and exercised by the guarantor, and not to be enjoyed and exercised by the debtor. The legal characteristics of exclusive right to defense include the following four aspects. First, Guarantor's exclusive right to defense may not be enjoyed and exercised in both general guarantee and joint and several guarantee. Second, Guarantor's exclusive right to defense shall not be enjoyed and exercised by the debtor, and shall only be enjoyed and exercised by the guarantor. Third, In exclusive right to defense, guarantor not only may exercise defense against creditor's request, but also may conclude defense opinion on relation with guarantee contract and whether responsible for guarantee according to the stipulations of the master contract. Fourth, The same as general right to defense, guarantor exercises exclusive right to defense in its own name rather than as debtor or agent of debtor. Exclusive right to defense includes, master contract void defense, guarantee contract void defense, fraud defense, guarantee period defense, guarantee scope defense, pre-suit defense, priority of security by goods defense and special exemption defense.In obligation guarantee system, guarantor's right to defense may act as a balance between interests of different civil entities. Since economic restructuring, China has gradually realized the importance of protecting guarantor's right to defense and has improved legislation on guarantor's right to defense. However, there are still issues existing and render it even more important to establish and perfect guarantor's right to defense. The author regards the following six steps are necessary in improving guarantor's right to defense system. First, improve legislation on guarantor's right to defense system. Second, guarantee form shall be deemed as general guarantee if not agreed upon or unclear. Third, insert acquiescence as guarantor's waiver of pre-suit defense. Fourth, include debtor's asset significantly less than its debt as limitation on guarantor's exercise of pre-suit defense. Fifth, provide for guarantor's urging defense in legislation. Six, clarify liability while guarantee and security by goods co-exist.