The Research For The Legal Effect Of Independent Guarantee In China And Its System Improvement

With the promotion of the rapid economic development,the market competitiveness and international influence of domestic commercial subjects are increasing day by day.They participate in domestic and international economic activities more and more actively,which brings about continuous innovation of financing method and financial transaction mode.As a legal system that has achieved relatively mature development and been widely used in international trade,independent guarantee has gradually received the attention of domestic banking financial institutions and non-banking financial institutions such as enterprises and financial asset management companies,and has frequently appeared in various types of guarantee agreements.Due to the lack of relevant provisions on independent guarantee contracts in the current law and authoritative interpretation,it is difficult to unify the judicial standards for the validity of independent guarantee agreements.Besides,the contract freedom of the parties can't be protected.It is bound to have a negative impact on the long-term development of our economy.Based on the concept,scope and legal characteristics of independent guarantee,this thesis takes a loan dispute before the Supreme People's Court as an example to explore the current situation of disunity in the judgment standard of independent guarantee validity as well as problems existing in the judicial practice arising therefrom,and offers some proposals to perfect the relevant legal system.In addition to the introduction and conclusion,this article is divided into five parts.The first part is an overview of independent guarantees.It mainly discusses the causes of independent guarantee system,the definition of independent guarantee,the scope covered by independent guarantee and its legal features.Focusing on the independence of independent guarantee,it shows that the establishment and validity of this kind of guarantee contract are not affected by the validity of the main debt contract,and the guarantor does not enjoy the debtor's right of defense and the guarantor's exclusive right of defense.The creditor's claim procedure becomes simpler and faster,which effectively guarantees the smooth and timely repayment of the principal creditor's right.In the second part,This paper mainly analyses the existing problems of legislation on independent guarantee in China,which is the reason why it is impossible to unify the judgment standard on the effectiveness of independent guarantee in judicial practice.Itincludes two specific performances:(1)the lack of statute law and authoritative interpretation;(2)the existing legislation and industry norms are on the low level,which have a limited application scope.The third part is about the judicial status and existing problems of independent guarantee in judicial practice in China.Taking a loan dispute heard by the Supreme Court as a typical case,This paper expounds the adjudicatory view of Supreme Court of denying the legal effect of domestic independent guarantee and its adjudicative standard of "internal and external differences" in the attitude toward independent guarantee.It shows a variety of adjudicatory ideas in combination with the different positions of local courts that do not completely negate the legal effect of domestic independent guarantee in similar cases.At the same time,it discusses the treatment of the "decision conversion" to the independent guarantee by the courts that deny the legal effect of the independent guarantee.Finally,the author summarizes the problems existing in the judicial practice of independent guarantee.In The fourth part,it is proposed that the legal status of independent guarantee should be confirmed and analyzed from the rational level.The author make an analysis on four aspects respectively: The Guarantee Law reserves space for the application of independent guarantee;The agreement of independent guarantee is not only legal,but also valid;The disadvantages of the independent guarantee system are not enough to completely negate the feasibility of the system and can be eliminated by establishing a preventive mechanism;Independent guarantee is of great significance to perfect the legal system of Guarantee in China.It is concluded that in order to better maintain the party's autonomy of will and satisfy the demand of commercial subject for the new type of guarantee in the course of economic development,the legal effect of independent guarantee should be confirmed in the law of our country.The fifth part is about the concrete measures to perfect the legal system of independent guarantee.In view of the legislative deficiencies and judicial difficulties of independent guarantee system,the author puts forward three suggestions on how to construct and perfect the independent guarantee legal system in China,advising to establish and perfect the system of fraud exception,in order to balance the benefit of each party as well as ensure the safety of the property of independent guarantors.