Comparative Study On The Guarantee Insurance And Guarantee Surety

As an insurance business, guarantee insurance gradually entered the Chinesemarket in the middle and late1990s and gradually developed a series of guaranteeinsurance businesses, such as installment guarantee insurance, housing loan guaranteeinsurance, auto loan guarantee insurance, enterprise current fund loan guaranteeinsurance and other businesses. However, as a country with a thirty-year reform andopening up, China still has a long distance with the advanced countries in thefinancial experience, financial theories and legal theories accumulated in severalhundred years, which makes us lag behind in the legal system while introducing theseadvanced financial instruments. As a completely new insurance product in theinsurance industry, guarantee insurance sinks into the predicament. What is the legalnature of guarantee insurance, guarantee, insurance or both? Since the beginning ofthe guarantee insurance business, the theory circle and the practice circle have beendebating its nature, and not yet reached a definite and uniform opinion on its nature.Guarantee and insurance are two different legal concepts, thus have different legalnatures and the fact that the guarantee insurance is recognized as guarantee orinsurance makes all the difference in the rights and duties of the parties to theguarantee insurance. The difference in the legal nature will affect the ultimateinterests of the parties to the guarantee insurance and the unclear legal nature willaffect the development and popularization of the guarantee insurance business.The author proceeds with the dispute over the guarantee insurance in this paper,makes elaborations and compassion from the concept, legal nature and legalrelationship of the guarantee insurance and guarantee surety, thus decides that theguarantee insurance is of insurance nature instead of guarantee and analyzes how tohandle the dispute over the guarantee insurance and guarantee surety in the legalpractice by the case.This paper consists of four parts. Part One is the basic elaboration of theguarantee insurance and proceeds with the dispute over the guarantee insurance in the theory circle and the practice circle, namely, the guarantee insurance theoryconcurrently has the "guarantee theory", the " insurance theory" and the "mixedtheory", firstly making some elaborations on the insurance and a systematic analysisto come to the legal feature of insurance from the basic theory for the theory, the legalrelationship between the policy holder, the insurer and the insured in the insuranceand the legal results from the insurance compensation, and then elaborating that theguarantee insurance belong to the insurance by beginning from the legal relationshipbetween the policy holder, the insurer and the insured in the guarantee insurance anddeciding whether the guarantee insurance has the basic nature of the insurance. PartTwo is the basic theory for the guarantee insurance. Since the theoretical research andthe practical research on the guarantee are comparatively mature, this part mainlyelaborates the basic theory for the guarantee insurance and the analysis still proceedswith the guarantee and points out the legal nature of the guarantee, namely,dependency, complementariness and relative independence, then further analyzes andelaborates the legal nature of the guarantee on the basis of the cognition of theguarantee, points out the apart from the dependency, complementariness and relativeindependence, the guarantee has the nature of urging and that the guarantee is thelegal act of performance in place of the creditors or bearing of the compensationliability for the nonperformance of the creditors when the debtor fails to perform theobligations. Part Three focuses on the comparison between guarantee insurance andguarantee surety, the purpose of which is to judge the similarities and differencesbetween the two. Part Four, by introducing two cases and making analysis, discussesthe mutual relationship between guarantee insurance and guarantee surety when thetwo exist in the same creditor’s rights and debt in the practice and the order selectionof the creditors or the insured when the debtors fails to discharge the debts.