Study On The Validity Of Contract Of Guarantee

As a kind of credit’s guarantee methods based on basic contract and guarantee contract, guarantee is essentially a contractual obligation, creditor exercise his contractual right to the surety in accordance with guarantee contract, surety exercise corresponding defense rights in accordance with guarantee contract too, the validity of the guarantee contract is the starting point of the rights and obligations of the parties. In practice, the both parties’ dispute tends to controversy of the validity of the guarantee contract. The discussion of the guarantee should really take the validity of the guarantee contract as logical starting point. Therefore, this paper attempts to take the validity of the guarantee contract as research object, jurisprudential and comparative study are used as the main research method, to discuss some specific legal issues related to the validity of the guarantee contract.As the article structure, the paper could be divided into six sections to analyze. The introduction describes the article writing origin and overall direction of article issue and the intent of this writing mainly. The chapter I focus on issues related to establishment of the guarantee contract, especially analysis the party consensus of guarantee contract and the particular form of guarantee contract carefully. The chapter II study the own factors which influence the validity of the guarantee contract form three aspects such as contract subject factor, declaration of intention and the effectiveness of the mandatory norm factor separately, the emphasis of this chapter is the study of many cases which have impact on contract parties’real desire and the freedom to express. The chapter III discourse the rule of validity subordinate of guarantee contract on the basis of the master-slave contract theory, the focal point of this part is whether the rule of validity subordinate of guarantee contract should be excluded by the party consensus or not. The fourth chapter compliance with legislation, study the original guarantor’s civil liability in two different situations, because the reason why guarantee contract is invalid to be defined from two different aspects in legislation, and the chapter based on regulations of original guarantor’s civil liability after the guarantee contract be evaluated as invalid in current law, states the author’s basic attitude on this issue. Concluding remarks section is the totality summarizes of the main points in the paper, confessing the limitations and shortcomings of author’s research in this paper topic.The purpose of this paper is analysis the flaws and shortcomings of existing laws’ regulation about the validity of the contract of guarantee, in order to provide some suggestions for the legislation perfection in the future. The author believe that as a kind of guarantee method, the guarantee will function further in market transactions as the codification of our state civil law and...