Research On The Exercise In Advance Of The Guarantor’s Recourse

Guarantee is a kind of security on the basis of people’s credit to ensure the realization of the creditor’s rights, as contract of guaranty in the form of accessory contract attached to the main contract. It plays an important role in the process of the continuous development of market economy. However, the guarantors assume more obligations but enjoy less right due to the characteristics of unilateral and voluntary of the guarantee contract. It will occur frequently that guarantor’s rights and interests not guaranteed because of high risk, heavy obligations and little right. And it often appears that evading debts with poor credit and deteriorating state of operation of debtors in a market economy, thus the guarantee will lose its proper role in this situation.To guarantee the rights and interests of the guarantor, it should be especially considered to make sure the guarantor’s rights perfect on the principal debtor, because the debtor is the ultimate person liable. The right of recourse against the debtor to ensure people is the core, and how to guarantee the right of recovery is the priority among priorities, the exercise in advance of the guarantor’s recourse is one of an important system to guarantee the rights and interests of the powerful safeguard for the guarantors. This paper will discuss how to improve the exercise in advance of the guarantor’s recourse.This article includes the following six parts:The first part is " the exercise in advance of the guarantor’s recourse:an overview". In this part, it makes an opening statement on the basic connotation and reasonableness of the exercise in advance of the guarantor’s recourse, the attitude of government and the character of right. Demonstration research on the value of improving this right will be made by contrasting and analyzing the attitude on foreign and domestic aspects.The Second, third, fourth and fifth parts will expound separately from four aspects:legal reasons which could lead to the exercise in advance of guarantor’s recourse; the scope of exercise in advance of guarantor’s recourse; the time of exercise in advance of guarantor’s recourse and the legal effect of exercise in advance of guarantor’s recourse." The extraterritorial legislation on the exercise in advance of guarantor’s recourse will be mainly investigated and combed in the four parts. And a comprehensive evaluation of the advantages and disadvantages of legislation of our country on the exercise in advance of guarantor’s recourse will be made, combining with the research on the rights of the scholars at home and abroad. The conclusion is the legal reasons stipulated by our country is too narrow, the scope and the time of the exercise in advance is not clear enough, and the exercise effect is not prescribed. It is hard to protect guarantor’s recourse for the vague and lack of these provisions.The sixth part is "the improvement of provisions on the exercise in advance of guarantor’s recourse in China Law legislation". In order to provide meaningful opinion to improve our country’s protection of guarantor’s rights, this part analyses the views of scholars on the legal reasons, the scope, the time and the legal effect of the exercise in advance of guarantor’s recourse. And the final advice of improvement will be made on the basis of comprehensive views.