On Guarantee Duration

Subordination and supplementary are the basic attributes of guarantee and they are also the key points to understand the legal nature as well as application rules of guarantee period.Guarantee contract is collateral contract of principal contract.This means we have to think about the principal contract.when we analyze the questions of guarantee contract.It's not correct to draw a conclusion that guarantee contracts are“unilateral contracts” or “gratuitous contracts” and guarantee period is a kind of statutory period.The value of guarantee aims to protect the public interest not individual guarantors.Guarantee period is a kind of agreed period not statutory period.This also can be verified by legislations of guarantee period in different countries and areas.The starting date should be agreed by the creditor and the guarantor.If relative parties have not appointed the starting date,it should start from the completion date of execution to the debtor's property in general guarantee because of the right of discussion and the date after the performance period of principal contract in joint guarantee.There is a legislative defect in the PRC Warranty Law about the starting date of guarantee period in general guarantee(the root cause is the differences of starting date and interruption causes of prescription between China and other countries' legislation).This defect also aggravate the confusions and controversies about the “interruption” of guarantee period.The creditor should have the right to claim his right to the guarantor when the debtor anticipatorily breach the principal contract.The length of guarantee period should also be decided by the creditor and the guarantor and we should not restrict the minimum limit or the maximum limit.The guarantee period has to be “interrupted” so as to avoid the guarantor escaping from his obligation.This “interruption” is a kind of legislative techniques and is different from the interruption of prescription.Guarantee period should be re-calculated from the execution date to the debtor's property and can only be interrupted for one time.The prescription is also applicable to the guarantee contract.The existence of guarantee period does not exclude the application of prescription and the prescription does not take over guarantee period in different stages.They are different and co-extensive and can work together to balance the rights between the creditor and the guarantor and can double restrict the creditor.The starting date of guarantee period and prescription are same.The prescription of guarantee contract subordinated to the prescription of the principal contract and we have to review the reasonability of judicial interpretation.In general guarantee,it's impossible that the prescription of guarantee contract will interrupt with the interruption of prescription of principal contract because the difference in our prescription regulations as well as civil act procedures from other countries and areas.In joint guarantee,judicial interpretation should not abandon the subordination rule to protect individual debtors.This will break the basic theory of guarantee and cause disorder of legal system.