On Guarantees The Rights Of The Guarantor Of The Contract

Guaranty, a form of assurance on the basis of individual credit, assures the creditors' right with guaranty contract, a subcontract of the main contract. The guaranty contract features in unilateral and none-compensative. The guarantor is responsible for debt implementation in the debt guaranty (implement debt or compensate damage on behalf of the debtor), but does not take the creditors' right. Because the guarantor is highly responsible for the creditor, when setting up guaranty law, we should emphasize not only on the obligation of the guarantor, but also the right. If the guarantor's legal right cannot be protected, the assurance system will be avoided and the guaranty will also fail to play its role.According to the various main bodies, guarantor's right is divided into: guarantor's right to creditor; guarantor's right to debtor; guarantor's right to other assurors. In addition, the paper discussed the legal circumstance in which the guarantor can be absolvent. The legal circumstance is not legal right, but the guarantor can use it to debate in the lawsuit and protect his own legal benefit. The guaranty contract is unilateral and none-compensative. Consequently, the guarantor has no right to appeal the creditor. To protect the guarantor's benefit, the law endows the guarantor with the right of demurrer---a series of right to defend (the right of demurrer as main creditor or common debtor and the exclusive right of demurrer. The demurrer right is: when the creditor intending to implement his right, the debtor counterworks the creditor to appeal in accordance with the legal incident. The key function of the demurrer is to stop the appeal temporarily or perpetually. The guaranty is subsidiary to the main debt. For any main debtor's right toward creditor (demurrer or others), the guarantor can claim to oppose the creditor. The guarantor can claim the following demurrers: the creditor's right not occurred; the creditor's right removed; the creditor implementing the obligation; the validity of lawsuit expired; etc. When claiming the creditor's right not occurred, the guarantor demurred in the situation that the main contract is void---with the void main contract, the guaranty contract automatically became invalid, and the guarantor doesn't take the guaranty responsibility if he has no fault. The guarantor can alsodemur in the situation that the main debt is removed due to reimbursement, balance or modification. The guarantor can also claim to implement the demurrer right and unease demurrer right toward the creditor. These two rights is based on that the guarantor is a debtor. When the lawsuit's validity of main debt is expired, the guarantor can claim the demurrer that the lawsuit's validity of main debt is expired. The guarantor can claim that the debtor has the right of demurrer and also other rights: the right of withdrawal and the right of the balance. When the civil conduct of the main debt has flaw, the guarantor can ask the people's court or the arbitration organization to change or cancel it if the debtor doesn't claim. If the debtor and creditor can be balanced each other in the main contract (insured by the guarantor), the guarantor can claim the right of balance to refuse compensate. The guarantor, as the debtor in the guaranty relation, takes all the rights of the common creditor---claim the demurrer that the debt is void when the guaranty contract is void or unreasonable; claim the balance of debt and credit if he maintains the same kind of creditor's right toward the creditor. The invalidity of the guaranty contract can be caused by void main contract or its own defect. When the guaranty contract is invalid due to void main contract, the guarantor can refuse to take the assurance obligation if he has no fault. If the guarantor has fault, he should take one third under of the debt that the debtor fails to reimburse. If the main contact is effective but the guaranty contract void, the fault-committing guarantor should take the civil obligation. If the contract is void due to u...