Predicament And Outlet Of Law Application Of Guarantee Period

Guarantee Period is an important part of the Guaranty in China.It plays a key role in whether the Guarantor undertakes the Guarantee Debt or not,and it is also one of the most controversial hot topics in the Guaranty.Legislative defects lead to the dilemma of China's Guarantee Period in theory and practice.In addition,Jurisprudence did not form a unified theory of Guarantee Period for a long time,which exacerbated the confusion of Judicial Application.In view of this,this paper will focus on the analysis of the difficulties of Law Application concerning the relationship between Guarantee Period and Limitation of Action,and find out the crux of the problem,and try to "dredge" the Guarantee Period so as to make the Guarantee Period run smoothly.In addition to the introduction and conclusion,this paper includes five parts:The first part mainly expounds the divergence of calculation in Guarantee Period.Security Law of the People's Republic of China and Interpretations of the Supreme People's Court on Several Issues Concerning the Application of the Security Law of the People's Republic of China are main source of law of Guarantee Period of Judicial Application.Which the article 15 of Security Law of the People's Republic of China agreed that the guarantee period with Parties,but the lack of specific laws and regulations,resulting in the difficulties of Law Application,such as agreed in the Guarantee Period the length of the interval,and the agreed in period starting point.they are lacking of regulation.Its Article25.Article26 although the starting point for "the date of maturity of principal debts" but lack of specific determination of Guarantee Period in Anticipatory Breach.The dilemma of whether the Guarantee Period can be extended is due to the uncertainty of the nature of the Guarantee period.the Guarantee Period is calculated in the case of defects in the validity of the main contract and the Debtor's bankruptcy proceedings.The second part mainly demonstrates the contradiction between Article 25 and 17 of Security Law of the People's Republic of China and Article 31 and 34 of Interpretations of the Supreme People's Court on Several Issues Concerning the Application of the Security Law of the People's Republic of China.Firstly,it is to question whether the Guarantee Period can be interrupted;Secondly,having a predicament between the statue of Limitations on the guarantee contract starts to run “from the effective date of the judgment arbitration award” and the result of the general Guarantor exercising the right of plea for preference claims.The third part is based on the analysis of the differences in the calculation of Guarantee Period derived from the above cases,and finds that the reasons leading to the difficulties in Law Application of the Guarantee Period in China are mainly classified into two categories.Firstly,the cause of legislation originates from the restriction of the autonomy of will between the Parties under the rule of "no contract statutory".Focusing on the conflicts and contradictions between the Parties' prior renunciation and exclusion of the interests of the period and the statutory legislation.Secondly,The cause of the theory stems from the fact that "what is the Guarantee Period" is not unclear.In particular,it mixes “Guarantee Period” and “Guarantee Liability Period”.and equates “Guarantee Obligation” with “Guarantee Liability” customary inertia,and has different opinions on the nature of Guarantee Period.The 4th part characterizes Guarantee Period as Contingent Period.A guarantee obligation is also a contingent obligation,including the result of "contingent" or "no".Whether the creditor's claim is made during the period is the key to any outcome.The author relies on the theory of predecessors.Focusing on the legal value and legal effect to prove the guarantee period is contingent period.Contingent period is the Parties can obtain or exercise the corresponding rights.The 5th part is mainly about solving the dilemma of the Law Application of the Guarantee Period.Firstly,it summarizes and analyzes the ideas of the theoretical circle on the dilemma of the Law Application of the Guarantee Period in recent years.This paper summarizes three theoretical hypotheses of "radical Noumenon critical School" and "rash Institutional Reconstruction School" and "mild Legislative perfection School",and criticizes the shortcomings of the former two theories.Secondly,aiming at the dilemma of the Law Application of Guarantee Period in China,the author puts forward that the legislative mode of "there is no agreement" should be adhered to-but with the premise of fully respecting the Parties' freedom of will;Improve the difficulties in applying the starting point of the Guarantee Period under expected default and put the statutory starting point for "the date of non-performance of the debt".At last,it is suggested that the Guarantor should be given the right of interpellation and determine the period of prompt for reference from the rules of Guarantee Period in Taiwan.