Research On The Guarantor's Guarantee Responsibility In Joint And Several Guarantee Invovling Impersonation Guarantee Behavior

By empirically analyzing 'Run Yuan company v.Ling Haiyan' case,this paper consciously divides the research on the guarantor's guarantee responsibility involving impersonation guarantee behavior into three parts,which are whether the genuinely-signed guarantor should be liable to the creditor,whether the aggrieved party of imposture(non-genuinely-signed guarantor)should be liable to the creditor and the impact of the creditor's major fault on the guarantor's guarantee responsibility.Through the analysis of the claims of the genuinely-signed guarantors in practice,this paper makes it clear that the genuinely-signed guarantors shall take full responsibility for the creditor,because each guarantee is a dependent guarantee of their existence while there are multiple joint and several guarantee in one guarantee contract.Several doctrines in German and Taiwan consider that the theory of unauthorized agency should be applied to solve the problem of the legal effect of impersonation behavior.Since impersonation guarantee behavior belongs to the legal category of impersonation behavior,the theory of unauthorized agency should also be applied to impersonation guarantee behavior.Depending on whether the aggrieved party of imposture exercises his right of admitting retroactively relating to the impersonation guarantee behavior,this paper discusses the legal effect of the impersonation guarantee contract.When it comes to joint and several guarantee that contains impersonation guarantee behavior,if the aggrieved party is willing to ratify the impersonation guarantee behavior,the theory of non-right commission system can be applied by analogy.Under this circumstance,the aggrieved party shall take his responsibility of joint and several guarantee as a guarantor.Or if the aggrieved party refuses to exercise his right of admitting retroactively but the creditor is in good faith and there are good reasons for him to believe that the impersonator were the aggrieved party of imposture himself or the impersonator had the right to sign the guarantee contract on behalf of the aggrieved party of imposture,then the theory of apparent agency can be applied by analogy.In both cases,the aggrieved party of imposture are treated like the real guarantors and assume the rights and obligations of the real guarantors by his ratification or by law.So to speak,under these two circumstances,not only the genuinely-signed guarantor but also the aggrieved party of the imposture can exercise his right of recourse towards other guarantors of joint and several guarantee after assuming full guarantee responsibility to the creditor in accordance with the provisions of Article 12 of the Guarantee Law.For other impersonation guarantee contract which the aggrieved party of imposture refuses to exercise his right of admitting retroactively relating to the impersonation guarantee behavior and the theory of apparent agency can not be applied by analogy to,it is argued that the aggrieved party of imposture should not assume the guarantee responsibility to the creditor consequently.Yet in this case the genuinely-signed guarantor still needs to take full guarantee responsibility to the creditor.However,there is a major fault of the creditor because he doesn't fully fulfill his examination duty and the transaction security obligations.The internal right of recovery of the genuinely-signed guarantor suffers from the major fault of the creditor,which leads to the recognition of the considerable causal relationship between these two matters.The genuinely-signed guarantor may hereby request that his guarantee responsibility can be appropriately reduced within the scope of the creditor's major fault,and the guarantee responsibility appropriately reduced is equal to the parts which can't be claimed after the genuinely-signed guarantor exercises his internal right of recovery.In order to better regulate the legal effect of the joint and several guarantee that contains impersonation guarantee behavior,this paper suggests that the Supreme People's Court can make it clear that the theory of non-right commission system can be applied by analogy to deal with impersonation guarantee behavior in practice by way of issuing judicial interpretations and guidance case.