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The Legal Effect Of The Creditor's Giving Up Partial Guarantees In The Mixed Guarantee

Posted on:2018-03-17Degree:MasterType:Thesis
Country:ChinaCandidate:S WanFull Text:PDF
GTID:2346330515990376Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Nowadays,people pay more and more attention to the security of property transfer in daily activities,whatever relationships including simple and complex as the legal relationship of guarantee and the social and economic development gradually challenge many legal norms and systems.Security has become an important means and legal system to guarantee the realization of creditor's rights and promote financial intermediation.In order to ensure the safety and smooth settlement of creditor's rights,people often establish more than one guarantee,and set up a number of security guarantees which including property guarantee and human guarantee.This model is generally called mixed guarantee.Mixed guarantee is one of the most complex and important systems in the guarantee system.It is of great significance to study the system for us to grasp the guarantee law.In this paper,under the framework of the mixed guarantee,we will study the legal effect of the creditor's giving up part of the guarantee as the starting point,and study in-depth the guarantor's responsibility order,the share of responsibility and other related issues in such a complex relationship,in order to pave the way for the systematic research and the integration of mixed guarantee system.This paper is divided into three parts besides the introduction and conclusion:In the first part,the author mainly discusses the legal application problem of the creditor's giving up partial guarantee in the mixed guarantee.The knowlege of property guarantee and human guarantee in the legislation of our country each period is grdually from single to mature.From the “guarantee law”28th to “property law”176th,the value orientation in the legislation from the absolute priority to protect human guarantee become protecting property guarantee and human guarantee in equality.In the process of we have a more clear knowledge of the meaning,nature,function of the property guarantee and human guarantee,and the spirit of autonomy and the principle of interests balance has been further demonstrated.The order of responsibility is not only the starting point of the mixed guarantee system,but also the ending poine.The legal effect of the creditor's giving up partial guarantees as every period taking different modes birth to different explanation and interpretation,reflected in the judicial practice is confusion of legal application.For one thing,in the priority oriented“guarantee law”28th,the consequence of the creditor's giving up the property guarantee is the guarantor can relief the responsibility in abandoned scope,but it is no significance to repeate the compleentary status of guarantor.The logic level will be highlighted only through adheringto protecting the property guarantee and human guarantee in equality;for another,how to define the creditor's abandonment exactly?Whether the guarantee include the general guarantee and joint liability guarantee?Whether the property guarantee which people's giving up is provided by their own or third people?What's consequences of the creditor's giving up human guarantee.About all of questions are not specified.In the second part,the author gives the definition of the behavior of the creditor's giving up security,and from the broad sense,the waiver includes the express and the implied two forms.The form of waiver is clearly stipulated in the legislation only have one thing,namely the creditor fails to exercise the guarantee right cause the collateral value impairment or loss,in this case,it's as the creditor's giving up guarantee.However,many behavior type can be summarized as the creditor's giving up guarantee.Therefore,this part elaborate the type of the creditor's giving up implied systematically in order,and mainly analyzes the collateral impairment or loss of value,guarantee contract is confirmed invalid or revoked,the guarantee is not set up three and so on,describing which circumstances can be classified as the creditor's give up the guarantee behavior.Finally,in order to provide some effective operational standards in judicial practice,we explain the judgment standard of the creditor's giving up some guarantees in detail,so as to standardize the type and judgment standard of the creditor's giving up in the above guarantee behavior.In the third part,the author analysises legal effect on the creditor's giving up part of the guarantees in detail,starting from the type of mixed guarantee,to understand the common combination of mixed guarantee,and under the various combinations of these form to observe the option of creditor how to exercise.In adhering to the equal idea between human guarantee and property guarantee,when this two type guarantees coexist in the same debt,according to the different forms of guarantees and the guarantors,the choice of creditor's rights should also be applicable to different rules.The right to freedom of choice of creditors possible be abused and it will damage the benefits of the guarantor,as the last line of defense of restricting creditors the right to freedom of choice and protect the interests of the guarantor-the guarantor of the right of claim and right of subrogatio,in this part,its connotation,nature,significance and the relationship will be explained.Finally,the article elaborate the legal effect of the creditor's giving up part of the guarantees,about the legal effact of creditor's giving up the property guarantee which provided by obligor or third people or the human guarantee which provided by third people,and determine the guarantor of the exemption scope and the amount ofcalculation to complete the article ultimate goal.Finally,in the conclusion part,the author reviews the whole context of this paper,and looks forward to the improvement of the guarantee law in the future.In this paper,due to the property law and law of obligation belong to two complicated areas,so it's difficult to control to writing.And the author's writing and academic level is limited,there are many immature place in this article.I just hope that through this paper in a micro perspective to observe mixed guarantee system,do some review and summary of legislating the Civil Code in the future and researching mixed guarantee systematically.
Keywords/Search Tags:Mixed Guarantee, Order of Guarantee responsibility, Waiver of Guarantee, Human Guarantee, Property Guarantee
PDF Full Text Request
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