A Discussion Of The Legal Rules About Co-guarantee

Guarantee system plays an irreplaceable role in protecting the achievement of creditor’s rights, reducing the credit risk, prompting the rapid development of commodity economy and capital operation. Making research in guarantee system, we must discover the theory from the development and evolution of social economy, it means that the research should start with the requirements which put forward by social and economic development in the field of security, to capture the real cause of the formation and evolution of the system.The essence of guarantee is ensuring the enforcement of creditor’s rights, guarantor has to undertake the security responsibilities according to the requirements of the creditors, only when the specific legal facts happened, and should be demanded by the debtors. The third person type guarantors have equal legal status, in theory, there should be no differences in the rules of various joint guarantee. Through the explanation and theoretical review of the common rules of co-suretyship and joint mortgage, Standing on the system interpretation position, the rules of article176th of Property Law can be adopted in various co-guarantee, which are about the realizing sequence of security rights and the internal relationships between guarantors:On legal issues, agreements should be respected. Without agreements, the debtor’s real security shall be prior to third-party’s security right. If all the security rights are provided by third-party, the guarantor who has performed the secured obligatory right mustn’t assert others for part, if any, the rules are flexible in situations. In these situations, it is none of others’business when the secured party abandons some guarantee, in these situations, the guarantors have equal legal status, and they are independent, each other will not be affected by others. Some legal rules are out of efficacy, for example, as inferring internal connection between presumption when no agreements existing, as the guarantor who has performed the secured obligatory right can assert his right towards the other guarantors beyond his own deserved, which are from the article12th of Security Law and its judicial rules, because they are changed by the article176th of Property Law. Similarly, the past judicial rules for joint mortgage can never be adopted by legal workers.System interpretation, as the important legal hermeneutics interpretation methods, is important for our country turn from "legal system" to "ruled by law ",when our socialist law system with. Chinese characteristics has formed, but conflicts are existing in each department or even in one law.