On The Evolvement And Progress Of China’s Legislation On The Co-existence Of Guarantee And Real Right For Security On One Creditor’s Right

The system of guarantee plays a more and more important role along with therapid development of commodity economy. In order to ensure its security of creditor’srights and obtain the maximum benefit in the fast-changing economy, the creditoralways take the way of mixed guarantee which requires the debtor to provide theguarantee of people and property at the same time. Accordingly, there comes aquestion on how to provide those matters concerning the principle for dealing withguarantee and real right for security, the scope of security, the order for the realizationof security, right for recompensation.etc., when guarantee and real right for securityco-exist on one creditor’s right. Different views are represented in the cases andtheories of various countries on this issue. During China’s30-years civil lawlegislation, different laws, from the Guarantee Law of the People’s Republic ofChina（hereinafter referred to as “Guarantee Law”）, the Supreme People’s Court’sExplanation of Several Issues on the Application of the Guarantee Law of thePeople’s Republic of China (hereinafter referred to as the Explanation of GuaranteeLaw), and the Property Law of the People’s Republic of China (hereinafter referred toas Property Law), have different stipulation on the issue regarding dealing with theco-existence of guarantee and real right for security on one creditor’s right. This thesis will respectively analyze article28of the Guarantee Law, article38of theExplanation of Guarantee Law and article176of the Property Law through ahorizontal comparison and try to clarify the evolution journey of the rule, and analyzeits advantages and disadvantages, so as to offer suggestions to perfect the rule forthe next legislation.This Thesis is divided into three parts excluding the Introduction.Charter I mainly present the legislation model of China’s Guarantee Law. SinceChina’s Guarantee Law adopt the model that security collateral have priority forcompensation, this Charter at first introduce and compare with the legislations ofthose states and areas which adopt this model of legislation, thus lead to the specificstipulations of the Guarantee Law and a comparison is made between the abovelegislations to point out their similarities and difference, then I make a comment onthe causes for such kind of legislation model and finally render my views withsupporting grounds.Charter II mainly introduce the legislation model that the Explanation ofGuarantee Law adopted. China’s Explanation of Guarantee Law has fundamentallychange the legislation model of the Guarantee Law by adopting the theory of equalityof person guarantee and property guarantee. This Charter also present and make acomparison on different legislation of states and areas which adopt this type oflegislation model, and then lead to specific stipulations of the Explanation ofGuarantee Law. The Charter then present the change of the Guarantee law byExplanation of Guarantee Law and finally comments are made on the legislation ofthe Explanation of Guarantee LawCharter III mainly present the legislation model that China’ Property Lawadopted. The provisions of the Property Law has both succession and amendmenton the Explanation of Guarantee Law, and this Charter focus on analyzing the abovetwo aspects and then render the author’s own view.