Dilemma And Outlet Of Guarantee Period In China

The qualitative issue of the guaranty period has been the hot sector of theguaranty law theory, and also a difficult problem. In this paper, by analyzing therelevant provisions and practical application of the duration of guaranty, it is putforward that the source of the contradictions is the understanding for the nature of theguaranty period. Then， through a comparative analysis of the similarities anddifferences of the guaranty period with the Limitation of actions and the prescriptionof action，it is proposed that the guaranty period is an independent form ofprescription. Based on the new qualitative, after makes a comparison and analysis tothe different legislation of the guaranty period in the main countries of the continentallegal system, it is pointed out that the period of guaranty system should bereconstructed. Thereby, it will be of benefit for make the guaranty period morereasonable and perfect. Specifically, this dissertation consists of four parts as follows:The first part involves an overview of the guaranty period and the existing guarantyperiod system in China. The overview focuses on discussing the meaning of guarantyperiod, and compares different mainstream definition modes at present throughcomprehensive analysis. The author of this dissertation holds that the guaranty periodrefers to the longest possible deadline the guarantor excuse the creditor for failing toexercise his power. And then, in accordance with relevant laws, the author of thisdissertation discusses the existing guaranty period system in China from regularwarranty, irregular warranty, nonstandard agreed guaranty period and uncertain agreedguaranty period.The second part discusses the dilemma faced by the existing guarantyperiod in China and the causes. Regarding the existing guaranty period in China, thisdissertation lists and relates the confused definition between “guaranty period”,“decided warranty scope period” and “warranty responsibility period”, thecoexistence of statutory guarantee period and agreed guaranteed period, the objectsagainst which the creditor claims right include both debtor and guarantor, the complexrelationships between guaranty period, main debt limitation period and obligationbased on guaranty limitation of action, and contradictory provisions concerning thepossibility of disruption of the guaranty period. Through above mentioned analysis,the author of this dissertation believes that the root causes of these problems lie in the uncertain determination of the guaranty period.The third party expounds the determination of guaranty period and thesolutions to the guaranty period system in China. This party first compares andanalyzes three prevailing doctrines in China——limitation of actions, scheduledperiod and separate period, confirms the ideas that guaranty period should bedeemed as separate period, and at the same time, holds that the guaranty period shallnot be deemed as period of loss of right. Based on the definition of guaranty periodnature, this part further relates the solutions to the guaranty period system. The authorin this part refutes the opinion held by reformists and critic, and proposes that systemrestructure is the effective solution to help gets out the dilemma faced by the existingguaranty period in China.The fourth part is analyzes legislative model review of guaranty periodacross the world and the reconstruction of guaranty period system in China. Theauthor realizes the necessity of institutional reconstruction, and then introduces, andbriefly comments the completely legal doctrine of guaranty period typically in Italy,the completely intended doctrine of guaranty period typically in Japan and France andthe limited intended doctrine of guaranty period typically in Germany and Taiwan.Through the combination of all the advantages of the system, combined with China’sspecific national conditions, the author of this dissertation puts forward that thesystem mode of “the agreed shall be followed, the laws shall be followed in case of noagreement and it shall be ruled out when there is no agreement or laws” should beadopted by the guaranty period system in China.