The Research On The Pleading Rights Of Instrument Guarantors

The safety and liquidity of instrument is the core legal value that the entire instrument law pursues, and the pleading of instrument is the crucial system for achieving this core value. As one of instrument behaviors, instrument guarantee is inevitable. It not only enriches the relationship between debts and credits, but also exhibits the new energy for the instrument guarantee system. Based on their consequence, and accompany with the development of market economy in our country, the comprehensively utilization of instrument's liquidity, credibility, and financing function. The pleading of guarantees will be increasingly appearing in the legal affairs, and following by the new requirement of the legal system of instrument pleading right. Thus, it is necessary to pay more attention to the pleading right of instrument guarantees.This article will begin with the concept of instrument pleading by using analytic and comparative methods, and by dint of the basic theory of instrument laws, instrument guarantee behaviors, and the correlative theory of civil law, creditor's right synchronously. Through discussing the law property of instrument guarantee, insuring instrument guarantor's pleading right. This article will also process the anatomy of familiar problems. In order to make sure instrument pleading system and instrument guarantee system more consummate and rational, it will elementarily confirm instrument guarantor's citing pleading right, and then keeping in guarantor's pleading right. This article will divide into four parts:The first part is regarding the occurring of the pleading right of instrument guarantee. There is a special relationship between debts and credits, which produces a particular right of instrument pleading. In addition, as one of the instrument behaviors, instruments guarantee has its unique legal preference. In order to provide the theoretical infrastructure for readers, this part will explorers the relationship of instrument relationship and instrument guarantee before the discussion of the pleading right. Firstly, research on the common rules of the instrument pleading. Instrument pleading is the mostly important portion of instrument legal system, which protects the instrument debtor's interests effectively, and carries out the internal balance of instrument legal system. For the sake of tracking the whole impression of instrument pleading, this part briefly introduces the concept of instrument pleading and the reasons of instrument pleading. Secondly, discussion on the instrument guarantee's legal property. By comparing the values orientation of civil law and commercial law, the author summarizes that the instrument guarantee possesses both independency and hypotaxis, but independency is more integrated in the system.The second part is regarding the pleading right of instrument guarantor based on itself. This article starts from classifying traditional instrument debtor's pleading right, Then subdivide two kinds: the one is all instrument debtors can claim to special instrument creditors, the other is special instrument debtors can claim to special instrument creditors in various situations, and discusses instrument guarantor's pleading right. Approximately listing the instrument guarantors'pleading right qualification in various situations. At last, compared with the pleading right guarantor in civil law, concludes the utilization of the pleading right.The third part is regarding the pleading right of instrument guarantor based on citing guarantee. The guarantor's citing right means that the guarantor is eligible to cite the pleading right of guarantee. In instrument legal theory, this right is not established. However, in the civil legal thoery, this right is admitted. By deeply studying the system, establish this rule in instrument law, not only for science of legal theory system is very necessary, but also defend instrument legitimate right and interests of litigants more forceful on actual judicial practice to perfect instrument. Through the analysis of instrument behaviors'independence and appurtenance attributes. In principle, ensure independence as the primary goal, and appurtenance as secondary goal. In conclusion, instrument guarantor is not able to cite guarantee's based-on- person pleading right in the general situation. However, in some specific condition, instrument guarantor is eligible to cite guarantee's based-on- person pleading right.The fourth part is regarding pleading right problem of hiding guarantee. The instrument guarantee purpose lies in strengthening the reputation perse, however, actually the instrument guarantee items at instruments may expose the shortage of the instrument reputation, because a good reputation instrument do not usually require for guarantee. Therefore, the instrument debtor does not take pleasure in guarantor guarantying at instruments definitely. Hence, more debtors adopted the way of hiding guarantee to attain the purpose of guarantee. Hiding guarantee is a kind of particular instrument guarantee. This concept is theoretically put forward from the countries based on the Genevan instrument legal system. However, there is no rule in code. In fact the common form is the endorsement of hiding guarantee, and identifying the sequence of endorsement becomes the key of what effect of endorsement of hiding guarantee is. It mainly discusses the real-life problems of endorsement of hiding guarantee, the distinction of endorsement of hiding guarantee and endorsement of attornment, because there is no difference in appearance between endorsement of hiding guarantee and endorsement of attornment, the endorser of endorsement of hiding guarantee should charge the liability of endorser. Therefore, hiding guarantor can claim the pleading right of endorser only, which is based on the following reasons: the nonsequence of endorsement, malevolence, fatal blame.In epilogue, due to"Instrument Law"in our country is constituted when business credit system in our country is comparatively unsubstantial,"Instrument Law"focus much more on protecting the security of instrument, and not pays much attention to the liquidity of instrument. Under such circumstance, the instrument guarantee system takes the attribute. Therefore, some aspects are prescribed comparatively rigorous and not much flexible. In order to ensure the instrument pleading system and instrument guarantee system to be more consummate and mature, instrument guarantor's pleading right should be given more attention.