Study On Guarantee Period

Currently in law and Practical application there are many contradictions in guarantee period, specifically, what is the nature of the guarantee period, could the guarantee period suspend,discontinue, how to calculate the guarantee period, and the relations of guarantee period and limitation of action. The root cause of the contradictions is unclear understanding of the nature of the guarantee period. The contradictions would inevitably become an obstacle to use and development the guarantee period. This article tries to make a comprehensive research on the problem. The article divides into three parts.The first part is on the basic theory of the guarantee period. The definition of guarantee period is the duration of the exercise of right of option. Then, the article introduces the different viewpoints of academician on the nature of the guarantee period, and then leads the writer's understanding. 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. The guarantee period is important in today's society, can not be abolished.The second part is on the calculation of the guarantee period. The writer divides the problem into tow part's to research. The first part is the starting date of the guarantee period. The article discusses on the general conditions and four kinds of special cases, but no matter what conditions, the starting date of the guarantee period must be after the right of option existence. The second part is the length of the guarantee period. If has the effective agreement, so long as the agreement final date was after the date of the expiration of the principal debts that must obey the agreement. If not have the agreement or the agreement not clear, should obey the statutory guarantee period that six months.The fourth part is on relations of guarantee period and limitation of action. Firstly, the article discusses the basic theory of limitation of action, and approves the guarantee period and the limitation of action both can be accomplished without coming into conflict. Limitation of action of guaranty contract calculates form when the right of request could exercise. In the relation between guarantee period and limitation of action of principal debt contract, guarantor can demur if the principal debt contract exceeds the limitation of action. The limitation of action of guaranty contract and the limitation of action of principal debt contract respectively calculates, does not affect mutually.