Responsibility Bearing On The Coexisting Of Material Guarantee And Credit Guarantee

The coexisting of material guarantee and credit guarantee refers to a state that theguarantors of material and people together provide guarantees for the debtor, with no need of beingat the same time or according to the same law acts or having any related contacts among them. It isthe reality product that comes into being in order to guarantee the claims. However, the reality isthat our inner law systems is still in defects and not mature enough, which blocks the establishmentof effective system against this problem. In the essay, it points out that we should insist the corevalue theory of equal responsibility between the material guarantee and the credit guarantee andalso regard it as the guidance of clearing the equal and related relationships between the guarantorsof material and people. First, it is no need of distinguishing the material guarantee between theguarantor and the third people; second, it is necessary to consider the debtor’s choosing right as thestart point of realizing the warranty and secure the debt, reflecting the principle of meaningfreedom; third, it’s necessary to rationally allocate the recovery cost between the debtor and theguarantor as well as to construct reasonable risk sharing and recovery subrogation system, whichhelps to protect the benefits of the guarantor and prevent the debtor from right abusing.The system frame establishes according to the equality theory which can be divided into fouraspects: first, it’s necessary to give the debtor the choosing right according to the law, especially indeciding how to achieve his warranty right; second, it’s necessary to guarantee the recovery claimright of the guarantors of the material guarantee and the credit guarantee; third, the guarantorown the right of immunity, in case that when the debtor relieve the debt of one guarantor(accidentor fault), the other guarantor can also be relieved in the corresponding range; fourth, the guarantorsof material guarantee and credit guarantee should share the responsibility according to a certainpercentage. The guarantor of the material guarantee determines his responsibility according to thematerial contract and the value of the material or the main debt. The guarantor of credit guaranteedetermines his responsibility according to the guarantee range from the guarantee contract. Bydividing the two ranges, there will be a ratio. Then the guarantors determine the exact amount ofresponsibility according to this ratio.In the first part of essay, it defines the concept of coexisting of material guarantee and creditguarantee according to the concept analyzing from different angle and legislation comparison indifferent periods and among different kinds; it also makes the inductions and comments on thehistoric evolve of the domestic law. In the second part, by studying the core value from the aspectsof both theoretical and realistic need, it determines the value orientation which the issue ofcoexisting of material guarantee and credit guarantee relies on; from the third to the fifth part, it talks about the establishment of specific system after determining the core value theory.Specifically, it divides into three major issues to demonstrate. Overall it put an emphasis on thelegislation technology, which in order to achieve the exact presentation of the law and play a greatrole in guiding the judicial practice.