Guarantee The Problems During The Practice Research

Launched in 1995 with the People’s Republic of China Law of guarantee (hereinafter referred to as the Security Act) "warranty period" phrase was first used.Subsequently, the specifications guarantee period, law had a big controversy in legal circles, mainly focused on the nature of the guarantee period, warranty period is the scheduled period or the limitation has always been zhongkoufenyun.2000, the Supreme People’s Court announced the application for People’s Republic of China guarantees law explanations on several issues (hereinafter referred to as the interpretation of the guarantee law), during the guarantee period is spent more ink on the issue, but unfortunately this introduced the guarantee law judicial interpretation but also enhance awareness of differences.Security law and its judicial interpretation of the release was meant to want to make comprehensive provision of the guarantee period, the contents of standardized, a clear concept and applies smoothly, but the attempt was not satisfactory, let this cast a fog in the area of civil law.Theoretically guaranteed period of debate and illogicality, has now become an key element inhibiting system application and development, then the practice is difficult.Paper on judicial practice in facing four important issues were thoroughly discussed.First issue mainly study the nature of guaranty period and its influence on judicial practice. First in academic circles on the character of guaranty period on the basis of an analysis of the different perspectives, focuses on the guarantee period for the scheduled period, mainly for the following reasons:as with the scheduled period, guarantee period applies to the right of formation, and belong to the right in the formation of choice;Within the guarantee period, creditors as long as the exercise of a right of formation, the guarantee period can be ended, with the scheduled period is the same;After the expiry of limitation, substantive rights of the right holders are not disappearing, a voluntary defence to persons entitled to rights and nothing therefore in full compliance with the scheduled period of guaranty period features.Second issue focuses on effectiveness of the guarantee period, through the analysis of the application of the statutory guarantee period and the prescribed guarantee period.supplemented by statutory warranty period.The third problem research on guarantee period starting and ending time, and generally this article discuss two special cases separately, but whatever the case, guarantee period starts after the execution date should have the right to choose.IV issues mainly explored the connection between security period and limitation of action, this paper argues that warranty period and limitation of action can co-exist.Ensure the limitation of action starting from the rights holder may exercise the right to request the offeree. Warranty period and limitation of action in relation to the principal contract, limitation by the guarantor to the principal contract can take this plea;And after the guarantee period after the surety in the creditor’s Reminder on the signature or seal is not necessarily a reconfirmation of the guarantee period.