The Study On The Application Of Counter-guaranty

The establishment of guarantee system has played an important role in protecting the creditor's rights,but also set up a risk that the guarantor's right of recourse will not be achieved.The counter-guaranty can solve the inherent defect,defending the legitimate rights and interests of the guarantor.As a peculiar way of security,there are obvious differences in the subject,object and method compared with guarantee.There are very few countries legislating on counter-guaranty in the world,and there are only several legal provisions on the counter-guaranty in China.The relationship of counter-guaranty is very complex,so there may be a mistake in comprehension,thus clarifying the differences and relations between guarantee and and other legal concepts are very important.The discussion on legal issues can not only be confined to the theory,but also with the practice of law can we have a correct understanding.This paper sums up the focus of controversy and analysis of the case to counter the security system and provide appropriate guidance.The first part is the proposed problems through the introduction of four cases,proposing the following questions: when the counter-guaranty period is not agreed or the agreement is unclear,how to date the guaranty period,start from the date of compensation or the "debt discharge period" expiration date? Is it the counter-guaranty contract valid with the violation of Article 16 of New Company Law,particularly the provisions of the second ? What are the rights of defense of the counter guarantor?The second part is to explain the basic principles of the counter-guaranty system.The term "counter-guaranty" refers to the behavior that the debtor is required to provide the guarantee for the realization of the right of recourse against the debtor when the third party guarantees the debtor.The counter-guaranty is a kind of conditional legal action in nature,and it will not take effect until the debtor fails to repay the debt.The counter guarantor can be the debtor or the third party other than the debtor.The object of the counter guarantee is the right of recourse.Counter-guaranty can not be applied to lien and deposit,which is different from the guarantee.The third part is about the question of how to start the warranty period with the absence of an agreement or an agreement is unclear in the counter-guaranty.In this paper,it is considered that it is not reasonable to adopt the method of calculating the period of guarantee from the date of compensation.The period should comply with the provisions of the 6 months in the absence of an agreement,and when the contract is not clear,the period should comply with the provisions of the provisions of the 2 years,.The guarantee period shall be calculated from the date of expiry of the main debt.Of course,at this time the main debt should be understood as the guarantor's right to ask debtor perform obligations,which is the main obligation of the security contract.The fourth part is about the effectiveness of the counter-guaranty contract in violation of the article 16 of the Company Law.The sixteenth article is not a effective mandatory norm and the decisions shall not challenge any well-meaning third party,the judgment can not be directly based on this article,finding the counter-guaranty contract is invalid.The fifth part is about the rights of defense of the counter guarantor.The counter guarantor can invoke the right of defense of the principal debtor,the right of defense of the guarantor,and defend himself against the guarantor.Firstly,although the guarantor did not invoke the right of defense that given up by the principal debtor and undertaken the responsibility,the right of recourse should not be affected,but the counter guarantor is under the respect of part of a plea,principle is "the debtor abandons their own interests,not to abandon the interest of others." Anyone have the right of disposition of their rights,because their behavior affects others,only when this effect benefit for others,the law approves the act;secondly,according to the legislative intent of the guarantee law,counter guarantor has the Legislative right to invoke the guarantor's right of defense;finally,as the parties to a contract,the counter guarantor should also have the certain right of defense,including the defense of limitation of action,invalid defense,beyond the scope of defense of counter guarantee.