Research On Legal Effect Of Independent Guarantee

In our country's current law,the provisions of the independent guarantee system of the"Guarantee Law" Article 5 and the "Property Law" 172, but the practical and theoretical circles have two different understanding of this point of view: That the recognition of the legal effect of domestic independent guarantee; Another view is that the legal effect of independent security does not apply to domestic transactions. Due to the seriousness of the independent guarantee and the problem of the fraud and abuse of the beneficiaries and the influence of the legal basis of the guarantee law, the practice circles have a negative attitude towards the subjects. However, the independent guarantee system has been widely used by the parties in the interaction between the civil and commercial subjects,has its unique legal characteristics. The main legal features of the independent guarantee system are as follows: the independence of the guarantee; full respect for the party's autonomy of autonomy; the recognition of the voluntary agreement is relatively high for the agreement of the independent guarantee, to a large extent to protect beneficiary of the realization of the interests of the debt. At present the civil law countries France and Germany on the independent guarantee system has been incorporated into the domestic law and use. Therefore, the independent guarantee system into the domestic legal system, the independent guarantee system is limited to certain areas and provides for the principle of security from the property, the independent guarantee system as an exception, the independent guarantee system and the subordinated guarantee into the security system. Recognition of its legal effect in the country at the same time provides for false transactions, document forgery, the debtor does not compensate for fraud and other exceptions to the situation with the guarantor to use the principle of fraud exception and based on the security contract itself the right to defense. Fraudulent situations In addition to the guarantor for self-help measures,the applicant can also apply for the court to take the order and security measures such as judicial relief measures.