Assurance And Material Guarantee The Coexistence Of The System

Today market economy develops very fast, the reputation has become the essential means in the market economy development. The legal right obligation is the most basic relation in the market economy, only insuring legal right can get a satisfactory realization, we can support normal market economic order. How we guarantee the realization of legal right? There are many systems in the modern civil law, such as the legal right guarantee, the default responsibility, save from damage of the debt etc. these systems all provided a beneficial guarantee for the complete realization of legal right. The guarantee of debt is important constitute part among them. Therefore, in the market bargain practice and judicatory practice, the guarantee of debt has important realistic meaning. The creditor usually requests many and various guarantees for the sake of the complete realization of guarantee legal right and add the strength of increment guarantee, which may result in both guarantee and the assurance of the thing keeping in same legal right. When the same legal right have both guarantee and the assurance of the thing, whether the debtor should lay claim to guarantor and warrantor successively or in the meantime actually? A very big controversy exists theoretically. According to this, this selected works chose to carry on a research on this topic of practice meaning, hoping to find out a kind of simple and fast principle about the proper order of guarantor and warrantor which have a help to the judicial fulfillment.The subject of this paper is the coexistence of the guarantee and assurance. The first part introduced concrete details of a case involving guarantee and assurance both, focus of dispute and a few concrete opinions. The second part make detailed analysis to our country's Guarantee Act of People's Republic of China, Explanation on Guarantee Act of People's Republic of China and Property Rights Act about coexistence of the guarantee and completely. The third part introduced the related provisions of other nations about coexistence of the guarantee and assurance completely, which mainly analyzed three kinds of theories and related theories of "the assurance responsibility absolute priority theory" and "the assurance responsibility comparative priority theory " of the assurance responsibility balance theory", the writer thought in the condition of coexistence of the guarantee and assurance, we should be according to engagement, if there have no engagement, guarantee and assurance should be completely equal, and creditor can choose first to lay claim toward the guarantor and can also choose to claim right toward the warrantor, or choose toward both guarantor in the meantime, there is no problem that whose responsibility has the initiative. The arguments of the fourth part mainly made detailed analysis to compensation problem and the related reasons. The writer thinks according to the completely same law position of each guarantor, guarantor who already takes the responsibility of guarantee can ask for compensation toward the debtor, who can also ask for compensation to the other guarantors in their share scope of responsibility. In the Practice, creditor probably gives up real right by nonfeasance, causing the guarantor impossibly carrying out compensation right, and injuring the guarantor's benefits seriously. Therefore, the fifth part of this text introduced a few concrete creditors to give up the affirm of the guarantee, and make detailed analysis about how the guarantor undertake a guarantee responsibility when gave up the guarantee of thing, the writer thinks that the responsibility of the guarantor and warrantor looked as joint liability, if the creditor give up the guarantee of thing and will make guarantor not exercise compensation power to his guarantor, and injure the guarantor's benefits, and the guarantor exempt a load of assurance responsibility t inside the scope of responsibility corresponds in the guarantor of thing. Certainly, if the creditor gives up the person's guarantee responsibility, the guarantor should do the same of thing at the guarantor's responsibility scope who should undertake. This text last part is the critique to this case, putting forward a concrete suggestion to this case according to related theories.