Review And Improvement Of China's Guarantee Period System

The guarantee period is an important part of the guarantee system and is of great significance for balancing the rights and obligations between creditors and guarantors.However,due to the complexity of the guarantee period itself and the mistakes in the legislation,the academic and practical circles are more controversial.This paper attempts to make a concrete and accurate definition of the meaning and nature of the guarantee period,clarify the effectiveness of the system during the guarantee period from the source,select the effectiveness model suitable for China's national conditions,and design the starting point and duration of the guarantee period on this basis.Rules and explain the relationship between the guarantee period and other related statutes of limitations.I hope that I can do my own little for the formulation of the relevant rules of the Civil Code·Contracts Section that are being compiled in China.The first chapter of this paper separately compares and analyzes several different viewpoints on the meaning and nature of the guarantee period.Finally,the guarantee period is explained as follows: it is not the statute of limitations or the period of exclusion,which is the guarantee condition attached to the contract.During the period,if the creditor legally determines the manner as a specific act,the period will not be counted,otherwise,once the period expires,the guarantee contract is cancelled due to the completion of the conditions,and the creditor stipulates all the guarantees in accordance with the contract.The creditor's rights are eliminated.The second chapter demonstrates the necessity and superiority of the existence of the guarantee period system in China on the basis of introducing the guarantors of the system protection period in other countries and regions.This paper compares and analyzes two typical guarantee period validity models in the comparative law,which are the “guarantee duration period” model represented by Taiwan in China and the “specific behavior period” model represented by German Civil Law.The evolution of ideas of China's Legislation of the guarantee period has led to the conclusion that the “special behavior period” model is more suitable for China's national conditions.In the third chapter,based on the selection of the “special behavior period” effectiveness model,the specific rules are designed for the elements of the guarantee period and the starting rules.The determination of the length of the period during the guarantee period is preceded by the agreement between the parties.There is no agreement or an unclear application for the six-month statutory guarantee period.The maximum guarantee can be agreed for each debt.The starting point of the guarantee period shall be agreed by the parties,but the final period of the guarantee period shall be later than the expiration of the period of the main debt's performance.The guarantee period for special circumstances such as staged performance,expected default of the main debt,and maximum guarantee shall be calculated in accordance with relevant laws.The fourth chapter compares the relation and differences between the period of guarantee and the limitation of action of guarantee debt liability and the extinctive prescription of main debt.The conclusion is that the three are related to each other and have their own calculation rules.They cooperate with each other in different situations and lead to different results.The conclusion part summarizes the main points of the full text,and attempts to propose specific amendments to the relevant legal provisions in the Civil Code: Contracts Section that are being compiled in China.