Evaluation And Analysis Of B Bank's External Guarantee Case

The court often encounters cases where a bank branch is sued for its external guarantee without the authorization of the legal person.Judging from the previous results of courts,there are different judgments on whether bank branches bear the responsibility of guaranty,and the judgments and legal basis is also different of courts at all levels in the real case of this article,it is more practical to determine the validity of guaranty and clarify the responsibility of bank branches without the authorization in judicial practice,and so as to unify the application of the law.The core issues surrounding the analysis of the case in this paper have the following three aspects.First,the guarantee qualification of bank branches.Second,the issue of the validity of guarantees by bank branches.Third,the issue of the responsibility of the bank branch to undertake the guarantee commitment.First of all,the Bank branch is different from the general corporate branch because of it's corresponding capacity for civil rights and civil conduct.Through comparative analysis of the legal characteristics of bank branches and non-corporate organizations,this paper finds that the main characteristics of the two are highly consistent,so it is considered that the branches of banks should be classified as unincorporated organizations.Moreover,since the unincorporated organization is a civil subject clearly defined by the General Principles of the Civil Law,it has the qualification for external guarantee.Therefore,bank branches should also be eligible for guarantee.Secondly,there are contradictions between the substantive law and procedural law in the legislation whether the branches of the bank belong to the "other organizations",and the determination of the effect of guarantee by the court s practice mainly centers on the issue of authorization or not.To carry out,if there is authorization,the guarantee is valid,and without authorization,it is invalid.This paper believes that the system of apparent agency should also be applied to judge the effectiveness of guarantee.And more stringent requirements should be put forward for the bank branches in guarantee activities.For protecting the stability of the transaction and the reasonable trust,whether authorized or not,the bank branches should be inclined to recognize the effectiveness of guarantee based on the it's special status in the market economy.Thirdly,after clarifying the qualifications of guarantees and the validity of guarantees,the responsibility of the branches of the bank for guarantee is clearer,that is,if the main contract is valid,the branch of the bank assumes the agreed guarantee responsibility;if the main contract is invalid,the branch of the bank shall be liable for compensation according to the degree of faulty that lead the main contract to be invalid.Generally speaking,based on the analysis of the qualification,authorization and responsibility of bank branches,this paper finally puts forward that bank branches should belong to unincorporated organizations,we should maintain a specific effect and highlight its particularity in its external guarantee.