The Legislation Of Guarantee Period Of China

Guarantee period may be the most controversial and complicated concept in PRC Security Law. There is no clear definition about the concept of guarantee period, there is also a lot of dispute on it in the academic world. A better choice is to define it as "the longest time that the guarantor tolerates the creditor who does not enjoy his right". In respect of the nature of guarantee period, there are a few views in the theory and practice field including period of prescription, period of exclusion, and period of divesting of right. Guarantee period does not conform to the features of period of prescription and period of exclusion, guarantee period should be "the period of divesting of right clause" promised by the guarantee contracting parties. There are statutory guarantee period, contractual guarantee period, maximum amount limited guarantee period which are stipulated in PRC Security Law. To a certain degree, the statutory guarantee period weakens the function of contract of guarantee under color of protecting the guarantor, its rationality is suspectable; the contractual guarantee period is the additional limited time on the base of the guarantee relation, the Security Law does not give full regulation and should make clear in the respect of contractual form, contractual content, and the legal consequences; the Security Law and its judicial interpretation refer to the period of certain duration, the guarantee period, and the period of discharging the guarantor's debts about the maximum amount limited guarantee, there are some uses of confusion about them in the existing legislation which should be improved. The start and interruption of guarantee period are two issues on the calculation of guarantee of period, which are both stipulated in the Security Law, but the clauses of interruption is unreasonable from the beginning to end. Based on the nature of guarantee period, the interruption should not be applicable. The contract of guarantee is an accessory contract. Based on the main\accessory contract, there are period of prescription on both the main and accessory contracts including guarantee period, this thesis tries to talk about the transformation and application of the three. Germany, Russia, Switzerland, Italy, and Taiwan are some countries or districts which have advanced legislation, we can use these as a source of reference, so this thesis will give a brief introduction on it. Hoping to eliminate the confusion in the implementing practice of PRC Security Law, the author will point out the deficiency in the legislation, and will propose some corrections.