Co-existence Of Guarantee And Assurance

The main purpose is to guarantee better protection of claims to achieve. Thus, in the transaction process, many creditors in order to further enhance security efforts, often requiring the debtor to provide multiple, multiple guarantees, which will be to ensure co-existence with the matter of security guarantees and other common phenomena. China's "Guarantee Law" part of the provision made for the co-guarantee provisions, but because of the provisions is too small, so the lack of appropriate operational, it is difficult to solve the increasingly complex relationship between the common security laws. To this end, the Supreme Court in 2000 formulated the "Supreme Court on the application of" Guarantee Law "a number of issues of interpretation," the interpretation of the common security and made some additions and detailed requirements, but only on the current judicial interpretation There are specific laws operate in practice, how to explain, but have not made at the legislative level innovation requirements, so that the current "security law" there are many shortcomings of the Department is unable to be resolved. Therefore, this article will ensure that co-exist and the matter of security systems for the study, by the matter of security and to ensure the coexistence of the rules applicable at the time of analysis, with a view on the basis of existing laws to better address the matter of security assurance and the coexistence of two were the order of effectiveness, to assist the judicial practice.The first part introduces the current article on the matter of security guarantee and the guarantor of the relationship between the coexistence of several theories and China should take the position. Currently the main doctrine of "absolute privilege doctrine guarantor", "guarantor relatively preferential treatment 'and' the matter of security responsibility and the responsibility to ensure equality" that is egalitarian three theories and related theories. I believe that, in the assurance and the matter of security co-exist, if the guarantor between the parties have agreed to assume security responsibility, and should fully respect the agreement of the parties; this is no agreement between the parties, the responsibility to ensure the security and material responsibility should be equal, that the creditor the right to choose not only the guarantor claim first rights, but also the right to choose a guarantor on the first claim the right thing, or choose to claim the rights to the individual guarantor, the guarantor does not exist and material responsibility of the priority issues of the guarantor that should be "egalitarian," said. The second part discusses the main analysis and material security to ensure the coexistence of a number of cases. According to the matter of security providers can be divided into the debtor to provide security and ensure co-existence of matter and the matter of security and guarantees provided by a third person chosen by these two cases, and permits analysis of both cases, the guarantor to assume ensure that responsibility. I believe that the debtor provide their own materials to ensure the security and the third co-exist, whether the third person is generally assumed joint and several guarantee or warranty liability, the creditors in the main session for a period not to fulfill the debt in the case, the debtor should first be asked for their provide material security to achieve debt, unable to claim in the case to require a guarantor any guarantee responsibility. Creditors to enforce the matter of security not to love after compensation, the only guaranteed by the guarantor to bear responsibility. If the creditor to give up the matter of security responsibility, the guarantor may give up its right to the exemption from the corresponding range of security responsibility. The third section describes the interaction between the guarantor claims issues, and how each guarantor claims accordingly described. I believe that as a "egalitarian, said," it is the legal equality between the guarantor, the guarantor has assumed responsibility for security in addition to the debtor may recover, but also can recover the other guarantor. This fourth part of the main creditors to give up the matter of security analysis of the behavior, in practice there since leaving the creditor to give up the matter of security guarantor can not exercise their right of subrogation of the phenomenon, this material guarantees for the creditors to give up the identification of an analysis of behavior, and analysis of the guarantor to guarantee the relationship between persons and things, in order to determine the creditors to give up the matter of security, the guarantor's responsibility to ensure that the scope of relief. And analysis of material security contract invalid or revoked, the guarantor shall undertake to guarantee to guarantee.