A Study On The Differentiation Of Civil And Commercial Guarantee System In China

The commercial guarantee system is an important system in the field of guarantee.Under the influence of civil law thinking for a long time,our country mixed the civil guarantee with the commercial guarantee,and did not give due attention to the particularity of the commercial guarantee.As a result,the system construction of the commercial guarantee stagnated and the relevant provisions need to be improved urgently.This article is based on the demonstration of the particularity of commercial guarantee in theory and system as the main idea,and takes the analysis of value and evidence as the direction,in order to promote the development of commercial guarantee system by distinguishing commercial guarantee from civil guarantee.In addition to the introduction and conclusion,the text is divided into five chapters,as follows:In chapter 1,starting from the historical development of the guarantee system,this paper argues that although the commercial guarantee system is derived from civil guarantees,it is always linked with the commodity economy.Therefore,the development of the commercial guarantee system should meet the needs of the current commercial environment.In chapter 2,this article examines the legitimacy and necessity of separation of civil and commercial guarantee system.Commercial guarantee's unique character in the theoretical framework and the specific system is the legitimacy of the separation of civil and commercial in the guarantee system.As for the necessity,this article discusses the reality of transaction security protection,the objectivity of social and economic development,the recasting of business culture.In chapter 3,this article focuses on the obstacles in distinguishing between civil and commercial guarantee system.There are two obstacles.The neglect of the particularity of commercial guarantee results from the legislation of "civil-commercial integration".And the judicial protection results in the prevalence of "combination of civil and commercial codes" trial thinking.Therefore,it is necessary to highlight the features of the commercial law in the existing legislation and strengthen the commercial law concept of private law autonomy.In chapter 4,this article gives the Macro concept of the distinction between civil and commercial guarantee system and the specific criteria of distinction.The former embodies that the commercial guarantee pays equal attention to the value of the legal order and effectiveness,gives priority to functionalism,pursues the overall fairness of society and the relative fairness of individuals.The latter is:according to the field of regulation,it is divided into civil activities and commercial activities;according to the main security body,it is divided into civil subject and commercial subject;according to the guarantee responsibility,it is divided into civil liability and commercial responsibility.In chapter 5,this article discusses the validity of the guarantee contract from the company and the assignment guarantee contract,in order to apply the thinking of division to the specific civil and commercial guarantee system.