The Legal Liability Of The Guarantor Under The Invalid Guarantee Contract

The guarantee contract is not legally binding on the parties under the condition of being invalid.And guarantor does not need to shoulder the liability to guarantee according to the provisions of the guaranty contract.However,it does not mean that the guarantor need not bear legal responsibilities any more.The loss that creditor suffers because of invalid guaranty contract deserves legal remedies.And there is no explicit provisions about the nature of the liability which borne by the guarantor.In addition,different scholars have different opinions.This also partly influences the identification of the scope of the responsibility.Meanwhile,the item seven and eight of the Judicial Interpretation of Guarantee Law in theory and judicial practice even themselves have many problem.On the basis of case studies and semantic interpretation,this paper try to clarify the issue existing and make reasonable suggestions,in expectation to provide beneficial guidance on legislative and judicial work.In addition to the preface and epilogue,the article includes three parts:The first part focuses on the normative analysis of guarantor's liability under the invalidation of the guarantee contract.The Article5(2)of Guarantee Law make it clear that the guarantor is not of course exempt from responsibility under the invalidation of the guarantee contract and shoulder the responsibility on the basis of ‘fault'.In Article7 of Judicial Interpretation of Guarantee Law,the joint liability shall not be determined directly when the creditor is not at fault and a half division of the responsibility is unreasonable.In Article8 of the Judicial Interpretation of Guarantee Law,it regulate that if the guarantee contract becomes void due to the invalidity of the principal contract,‘If the guarantor is at fault,the portion of civil liability borne by the guarantor shall not exceed one-third of the portion that the debtor is unable to discharge'.But as a result,in the practice,‘the fault' of the guarantor is simply identified only because ‘the guarantor knows or ought to know that the main contract is invalid'.This has caused great controversy in theory.The author suggests that some factors such as the time in which the guarantee contract is concluded,the content of the guarantee contract,the role the guarantor pays in the concluding process of the principle contract should be considered synthetically to determine the guarantor's fault.The second part analyzes the nature of the civil liability borne by the guarantor under the invalidation of the guarantee contract.The author consider that the contracting fault liability shall be charged to the guarantor if the principal contract is valid and the guarantee contract is void and at the same time,the tort liability to the guarantor if the security contract becomes void due to the invalidity of the principal contract.And the third part discusses the scope of the civil liability borne by the guarantor and the problem of seeking recourse after the guarantor assumes his liability to compensate.The author considers that if the principal contract is valid and the guarantee contract is void,the scope of the responsibility borne by the guarantor is limited to the value of the collateral rather than the performance interest;and while the security contract becomes void due to the invalidity of the principal contract,the scope of the responsibility borne by the guarantor is not limited to the value of the collateral.Meanwhile,After the nullification of the guarantee contract,the subordination of guarantee,a juristic fact in civil law,does not of course disappear as the contract is invalid,and after the guarantor has assumed his liability to compensate the creditor,he may seek recourse against the debtor.