Study The Effectiveness And Performance Of The Guarantee Contract

As a kind of atypical guarantee system,letting the guarantee has become a kind of guarantee method which is widely used in Germany and Japan through the development of doctrine and jurisprudence.In fact,the guarantee system in China has a certain development,such as financing leasing,construction contract,equity transfer and other disputes.With the "property law" of the continuous revision,let the guarantee system should be through the law to become a formal guarantee system has been a controversial issue.Before the introduction of the Property Law(2),the academic community had argued over whether or not to bring the guarantee into its scope of adjustment.However,the integrity and internal unity of the real right law system should be taken into account,and the legislator Into the statutory guarantee.However,with the social economy development,market transactions in the emergence of the great demand for financing guarantees,countries in order to meet the needs of this market have to jurisprudence or case law to establish a guarantee system,such as in Japan,Germany and Anglo-American law State,letting has become an important guarantee,but our law does not recognize its legitimacy.With the introduction of the judicial interpretation of private lending in the Supreme People’s Court in 2015,the controversy over the assignment of security seems to have been settled,but the author believes that the interpretation of the interpretation of the contract to avoid the validity of the issue,neither sure nor negative Attitude makes the guarantee in the practical application is still controversial,the local courts or the word.The realization of the creditor’s claims in this interpretation is not comprehensive,there are some problems,encounter specific cases can easily lead to new disputes.In the face of the growing market economy,financing needs in the transaction is also growing,with the guarantee with its unique advantages in these transactions play an irreplaceable role,but its "illegitimate child" identity and embarrassment,I believe that our law is currently urgent need to make a clear response to the guarantee.This article mainly uses the case analysis method and the comparative analysis method to divide into four parts.The first part takes the three typical cases as the angle of view,points out the controversial dispute caused by the different way of guaranteeing in the judicial practice,and sums up the controversy of the case.The second part expounds the author’s own point of view and finds out the theoretical support through the foreclosure focus of the preceding chapter,that is,the legal analysis of the validity and performance of the guarantee contract.The third part is the author through the aforementioned case of inspiration,combined with the academic point of view of the views of the development of the guarantee to make their own recommendations.The fourth part is the conclusion,summarize the central view of this article and the author’s simple idea.The author through the analysis of three classic cases to draw their own point of view that should be recognized as the effectiveness of the guarantee contract,which is a protection of the rights and interests of creditors,while creditors can be in accordance with the "Property Law" 170 rules,the debtor to When you can not repay the debt,you can enjoy the priority of the guarantee by passing the guarantee contract.In fact,in practice,different places,different levels of courts,arbitration organizations on how to treat and deal with the issue of security disputes,there is a huge difference.But in general,courts at all levels are gradually becoming aware of the guarantees and frequently qualifying them through various jurisprudence,and gradually accepting the emergence of such atypical guarantees.Therefore,I believe that the guarantee should be included in the scope of the law,in order to regulate the market transactions in the dispute,but also to facilitate the trial of such disputes.