The Cognizance And Liability Responsibility Of Invalid Guarantee Contract

With the rapid development of the socialist economy in our country, it is imminent to establish the whole society credit system and credit system. And guarantee effective way, which promote the circulation of commodities and reduce the business risks, play an increasingly important role. However, there are some blank and unreasonable places about "security law" and its judicial interpretation due to the increasingly problems involving the guarantee. According to the above issues, experts in law theory and judicial practice suggested different views and made their referee for different case, while there are some contradictions and differences. Therefore, we should give more attention on the cause of the invalid guarantee contract and the nature and scope of the liability responsibility which guarantor must bear after the guarantee contract. In addition, we will try to find the solution under the existing legal framework. In our study, we explore the cause of the invalid guarantee contract and the cognizance of the civil liability guarantor responded in order to be helpful for security law legislation and judicial practice.Based on the distinction of the different reasons of invalid guarantee contract, the cause of the invalid guarantee contract, the nature of responsibility the guarantor bears and the scope of the compensation were discussed in our study.In our study, there are five parts:introduction, chapter one, chapter two, the third chapter, the fourth chapter and the conclusion, respectively. The introduction involves the reason of research, purpose, significance and the problems which need to be discussed. The first part is an overview of invalid guarantee contract. Guaranteed is one of the important way to guarantee in the economic life. The sixth of "Security law" defined the guarantee. Additionally, we continued to analyze the law characteristics on the invalid guarantee contract as follows:civil illegality, original invalidity, deserved invalidity and determined invalidity. The second chapter discussed the cause of the invalid guarantee contract. Guarantee contract is a type of contract, therefore the cognizance of the invalid guarantee contract could be according to the general theory of contract. Compared with the principal claim-debt contracts, guarantee contract is in a subordinate position. According to the property theory of contract, the main contract is invalid, the corresponding contract is also invalid. The fifth article about "special items" in "Security law" pointed that the responsibility that guarantor bear is be independent, that is to say if the main contract is invalid the guarantee contract is not invalid. As invalid guarantee contract caused by itself, we mainly discussed two different cases. The one is main body didn’t meet the standard, the other is mean ambiguity. The third part mainly analyze the property of responsibility after invalid guarantee contract. Theoretically, there are two perspectives:the contract fault liability and tort liability according to different situation.-when the guarantee contract is invalid by itself, it is tort liability that the guarantor and the debtor bear if the creditor without fault. On the contrary, if the creditors have fault, the nature of the guarantee contract is fault liability. In addition, if the guarantee contract is invalid due to the invalid main contract, and the guarantor also have fault, the responsibility is defined to tort liability. The research on the fourth chapter is about the scope of the guarantor to assume liability. When guarantor respond contracting negligence liability, he is the compensation scope of reliance interest loss of creditors. But security law explains according to the tort liability to determine the scope of the compensation of the guarantee. Moreover, the issue that the security law explains about compensation to the debtor up to the parts or a third lacks legal basis and need to be modified in the future. In our study, conclusion is the summary of the above problems in the four chapters.