Research On Periodic Guarantee

The Periodic Guarantee happens when the guarantor and the creditor agree that the guarantor will not bear the guaranty liability after the first registration of the mortgage is completed(“Periodic Guarantee”).The Periodical Guarantee is not a way of guaranty which is independent of the joint liability guaranty and the general guaranty.Usually,the bank will directly deduct the deposit account from the developer's pre-delivery,and notify the corresponding deduction at the end of the month.Books,lists,etc.are delivered to developers.For example,during the period agreed by the parties,if the purchaser fails to repay the loan on time,the real estate developer needs to assume the guarantee responsibility.In practice,the bank has also developed the Periodic Guarantee in the individual real estate purchase loan business,which leads the related cases have flooded into the Court.However,because the Periodic Guarantee is a new thing in practice,and the parties often use the improper words in parties' agreement on the Periodic Guarantee.The definitions of some related issues of Periodic Guarantee are different.Among them,there are three typical types:(1)the legal nature of the Periodical Guaranty,(2)the achievement of the termination conditions of the Periodical Guaranty contract,and(3)the beginning calculation of the limitation of action of the periodical guarantor's right of recourse.A large number of Periodic Guarantee disputes involve these three issues.If the case is not dealt with for a long time,it will affect judicial impartiality and hinder the establishment of the image of the authority of the Court.Therefore,this paper analyzes these three typical problems in order to make a reasonable definition.This paper is divided into four parts.The first part starts with the concept of Periodic Guarantee,introduces what is Periodic Guarantee and analyzes the characteristics of Periodic Guarantee.Compare the concept of a Periodic Guarantee with Mortgage.Chinese "Property Law" "Guaranty Law" dose not stipulate the Mortgage as a guarantee.After Mortgage was introduced into the mainland of China,Chinese characteristics came into being.Periodic Guarantee is a major feature of the Mortgage system in the mainland of China,that is,real estate developers stepped into the loan contract between the bank and the purchaser to provide guarantee for the loan of the purchaser.After the reform of Mortgage system in UK and Hong Kong,Mortgage has become more and more similar.Our country existing law does not admit Mortgage,also does not admit Mortgage to assure means as new,basis guaranty deals with alleged mortgage to be feasible completely.The second part analyzes the nature of Periodic Guarantee.In terms of the legal nature of Periodic Guaranty,there are three viewpoints: period of guaranty,condition of rescission of guaranty contract,both period of guaranty and condition of rescission of guaranty contract.In my personally opinion,periodic sex assures the guaranty contract that is attached remove a condition,deal with namely party agreement hypothecate is registered for the first time,it is guaranty contract remove a condition,if the condition is accomplished,guaranty contract removes,guarantor assumes guaranty responsibility no longer.The periodical warranty is defined as a contract subject to termination conditions,which is most consistent with the real intention of the parties.Moreover,in cases where the parties agree on the periodical warranty terms and separately agree on the warranty period,there will not be two different warranty periods in the same warranty contract.If the Periodic Guarantee is defined as the guarantee period,the court may deny the agreement of "Periodic Guarantee" and make the developer provide guarantee for the extremely long term loan contract.In this way,developers will no longer be willing to provide guarantees,buyers will also have a number of adverse effects.The third part to solve the problem is the pre-sale of commercial housing in only for the pre-purchase of commercial housing mortgage registration(hereinafter referred to as premortgage registration)or the initial registration of two kinds of housing ownership,the periodic guarantor can be exempted from the guarantee responsibility.That is to say,whether the termination conditions of Periodic Guarantee contract are fulfilled in these two cases.I think,register of beforehand guaranty is not hypothec first to register,do not establish hypothec,reason is not dealt with before hypothec first to register,the condition that periodic sex assures a contract removes achievement,development business does not get avoid to assure responsibility.But,if develop business already dealt with building droit initially to register and droit transfer to register actively,it is because buy a house or the bank and late did not deal with guaranty to register,if do not allow development business to avoid,assure responsibility,will bring about unfair situation.Right now should allow development business to urge to tell a bank to deal with guaranty to register,or it is to urge a bank to advocate guaranty to the person that buy a house to register,if the bank does not urge actively,right now can exempt the guaranty responsibility that develops business exceptionally,from inside phased sex assures a contract extricate itself.The fourth part mainly discusses when the limitation of action of the right of recovery is calculated after the periodic guarantor assumes the guaranty by phases.This paper discusses the legal interpretation,the same debt by phases,the guarantor's right of recovery and subrogation.In my opinion,the reason for guarantor to provide guaranty should be distinguished in the beginning of the limitation of action for guarantor's right of recourse.If the debtor is agreed to pay the guarantor in installments,it shall be counted from the date when the last period of performance expires.If a lump sum repayment date is agreed upon,it shall be counted from the expiration of such date;If there is no agreement on the time limit for the exercise of the right of recourse,the case shall be dealt with according to the prescription of limitation of action of the contract with the undetermined time limit for performance.As for the guarantor for the sake of non-cause management the limitation of action for the right of recourse shall start from the time when the guaranty liability is assumed.