On To Ensure That Responsibility

The system of warranty is playing a more and more important role in the civil contracts and economical cases on the conditions of socialist market-oriented economy at present. It includes two kinds in civil theory: security of guaranty and warranty in rem. Because the procedures in guaranty are simple, the contract of surety is established only when the declarations of will are identical between the litigants, the system of warranty is very lease in present economic life.The guaranty liability is the core of the system and the protection of credit lies in realizing the guaranty liability, so it's nature, establishment, fashions of bearing the responsibility and etc. have direct relations with the right and obligation between the litigants. While the are some unreasonable regulations in the security law and the judicial interpretation, this dissertation intends to provide some legislative suggestions in order "to complete the legal system of guaranty through comparative studies of guarantee theory and legislation. The whole disscrlalion is constructed into 5 parts, which is abstracted as follows:Part one is an examination of the general guarantee theory. Through giving a clear description to the definition and nature of the guaranty liability, the author reaches a conclusion that it is unilateral, supplemental, accessory, and probable, and that it is truly not civil liability but a kind of legal duty.Part two is an analysis of contract of guarantee. First, the author considers that it is better negate the efficacy of oral guarantee than admit it. Secondly, the article demonstrates the guarantor should bear fault liability in entering into a contract and it analyzes the guaranteed portions.Part three consists wo seel ions. First, the anthor holds that whenthe litigants didn't agree on the fashion of guaranty it should infer to be general guaranty while not presumed several and joint guaranty. Secondly, the dissertation studies the guarantee liability when security of guaranty and warranty in rem exist commonly. The author maintains that the guarantor should have the right of choice when presumed several and joint guaranty appears together with warranty in rem of secured debtor.Part four completely introduces the rights of pleading of guarantor. It contains three proportions: Fist, the guarantor has the rights of pleadings as a general debtor; Secondly, he can share the rights of pleadings of the secured debtor; Thirdly, he holds some exclusive rights of pleadings.The final part specially deals with the system of guaranty period and the relation between the extinctive prescription of secured debts with guaranty period.