Study On Guarantee Period

The problem of guarantee period has become an important factor that restricts the improvement of China's guarantee system. This article tries to make a comprehensive research on the problem. The article divides into five parts.The first part is on the nature of the guarantee period. First of all, the article introduces the different viewpoints of academician on the nature of the guarantee period, and then puts forward the writer's understanding of the nature of the guarantee period. Guarantee is legal act subject to conditions. The credit of guarantee can't take place until the conditions of guarantee is met. The right that the creditor exercised in the guarantee period is not the right of request but the right of evolvement. So guarantee period is scheduled period, namely, guarantee period is the duration of the right of evolvement.The second part is on the arrangement of the guarantee period. The legislative model of statutory is ill-considered. The article suggests abolishing the so-called statutory guarantee period. The duration of guarantee should have a minimum. If the duration of guarantee arranged by the parties is so short that the creditor can't exercise his/her right actually, it should be intervened by law. The arrangement of the guarantee period needs not upper limit. The arrangement of the guarantee period shall not be earlier than the date of the expiration of the principal debts. It is not the agreement of guarantee period where the parties have agreed that the guarantee period does not expire until the debtor repays the principal debts and its interest.The third part is on the calculation and its effect of the guarantee period. It is a principle that the guarantee period should be calculated from the date that the parties have agreed. If without arrangements on the duration of the guarantee, from the date of the expiration of the principal debts, the guarantor of ordinary guarantee can exercise his/her right of interpellation and the creditor of joint guarantee responsibilities can request the guarantor to assume guarantee responsibilities. Limitation of action of the guaranteed debt and Limitation of action of the principal debts both can be accomplished without coming into conflict.The fourth part is on the period of the maximum guarantee. First of all, the article analyzes much duration and date of the maximum guarantee, and then analyzes the arrangements and calculation of the guarantee period of the maximum guarantee. The "certain period"provided in article 14 of the guarantee law is the period of the credit occurred and is different from the guarantee period. The arrangements and calculation of the guarantee period of the maximum guarantee follow the rule of the guarantee period of general guarantee.The fifth part analyzes related content of two propositional versions for civil code draft of China which separately preside over by Liang Hui-xing and Wang Li-ming. The fifth part also designs some relative clauses of guarantee period.