"Coexistence Of Debt" Or "joint Guarantee"

The coexistence of debt undertaking is a very important system, but not being taken seriously. In Chinese current civil and Commercial Law, there have no special provisions about the coexistence of debt assumption. And there is only brief introduction in the academic books, which have no further analysis theory, let alone the comparison of similar system. In this paper, there are four parts to analyse the coexistence of debt undertaking and joint suretyship, summarizing the distinction standard for the two parts in judicial practice. And The coexistence of debt undertaking should apply the rule of joint suretyship.The first part of this article summarize some distinction standards to distinguish the coexistence of debt undertaking and joint suretyship.1.Whether the commitment have a clear intention.2.The original creditor debtor relationship is real objective existence.3.The ambiguous commitment item contents should judge according to the agreement of the parties firstly.4.There have specific repayment period, repayment plan.The second part compares the coexistence of debt undertaking with joint suretyship from the theory. In the constituent elements, the original debt of the coexistence of debt undertaking must be effective presence and transferable. While joint suretyship is not so. The coexistence of debt undertaking has four circumstances, but the joint guarantee must have the creditor and guarantor agreement. In the legal effect, the third debt must has the same quality with the original debt in the coexistence of debt undertaking. But the contract guaranty is accessory contract and the relationship between the original debt and the guarantee debt is principal and subordinate. In the coexistence of debt undertaking, the parties is limited by limitation of action only. But in joint suretyship, there has guaranty period also. In the coexistence of debt undertaking, the debt has no reason, while in the joint suretyship, the validity of the accessory contract is effected by the master contract. The coexistence of debt undertaking and the joint suretyship have similar defense right and the recovery right.The third part discusses that whether the coexistence of debt undertaking can apply the rule of the joint suretyship. The distinction in judicial practice is not as simple as which in theory. It will be too pedantic if we emphasis the theoreticaldistinction excessively. Because of the similar structure of rights and obligation,system and function,it can apply the rule of the joint suretyship when we solve the dispute of the right and obligations between the parties of the coexistence of debt undertaking in juridical practice.The last part is the summary of the paper.