On The Status Of Guarantor In The Relationship Between Creditor And Debtor

Since its publication,the guarantee system has been playing a more and more important role in financial management.With the increasingly urgent demand for the market to ensure that the relevant laws and regulations to ensure that more and more detailed,but the provisions of the guarantee system,the content is still more abstract.For example,this article attempts to explore the status of the guarantor in the proceedings,the judicial interpretation of the Civil Procedure Law of China has only one provision.But in practice,not all creditors are strictly in accordance with the provisions of the Civil Procedure Law of judicial interpretation to the prosecution,for example,in the presence of multiple people in the joint guarantee guarantee,the creditor may choose any Guarantor to prosecute.Therefore,this article attempts to discuss the status of guarantor in the lawsuit.Whether the guaranty relationship is established is the precondition of the guarantor to assume the liability of guaranty.According to the different ways of guarantee,the guarantee can be divided into general guarantee and joint and several guarantees.In these two methods,the rights of the guarantor are different.In general,the guarantor undertakes the supplementary liability and the secondary liability,and the guarantor has the right of first instance.In the general guarantee,the guarantor to bear the guaranty is conditional,only in case the debtor defaults,the guarantor to bear the guaranty liability,therefore,if creditors did not request the debtor to pay off the debt and ensure people can not fulfill the main debt before,is not the general requirements of the guarantee.This means that if there is a lawsuit,the creditor can not be listed as the defendant alone,only the guarantor and the guarantor of the debtor as a joint defendant,or only listed as the defendant.But in the joint guarantee,the guarantor to bear the joint liability,if the debtor fails to perform or not perform the debt,the creditor can request the debtor to fulfill the debt,or request the guarantor to bear the guaranty liability.The guarantor is requested to undertake the suretyship liability and does not emphasize that the principal debtor cannot perform,and the creditor may request the guarantor to perform the suretyship liability if theprincipal debtor fails to perform his obligations.This is mainly because the guarantor of joint and several liability guarantees,does not enjoy the right of first defense against creditors.When the creditor requests the guarantor to bear the suretyship liability,the surety can not make a plea for the right of first instance.Therefore,in the event of litigation,the people and to ensure that the status of the principal debtor in debt in the same creditor can be sued the guarantor,the guarantor can also be prosecuted separately,can also be a grantor and grantee as a co defendant with the prosecution.In the current judicial practice,only the individual parties choose general guarantee way,selection of joint liability guarantee(expressly agreed or not agreed joint liability guarantee guarantee way presumption of joint liability)of the majority.But in the guarantee of joint liability,the vast majority of creditors in the prosecution,to realize the creditor's rights better,at the same time sued the grantor and grantee,only a minority of creditors prosecution only surety or guarantor namely debtor.It is worth exploring is that if the joint guarantee and joint guarantee,creditors in the prosecution,the prosecution is only part of the guarantor,but after the execution of the main debt still can not be fully discharged.At this time,the creditor can then sue the other guarantor.According to the provisions of the security law,the creditor may choose to sue the object to exercise the right to appeal,"can" on behalf of one or you can choose to choose a few guarantor exercise power.The exercise of the rights conferred by law is the "option" instead of "waiver",creditors choose to guarantee part of the exercise of power does not mean to give up on another part of ensuring human rights,unless the creditor shall make up for other assurance of human rights advocates mean.If the creditor does not guarantee to other people had the right idea,never give up on the main rights,in accordance with the spirit of civil law,not expressly to give up the power to give up power is presumed to have been retained or not,the right to express the failure to give up.As a result,the guarantor does not claim that the right does not give up the right,but the right to exercise the right to choose the object,not to be part of the guarantor is still liable to assume liability.