On The Distinguish Between Guarantee And Coexisting Debt Commitments

Not all coexisting debt commitments and guarantee are difficult to distinguish,only the coexisting debt commitments concluded between the third party and the creditor is difficult to distinguish from the guarantee contract concluded between the third party and the creditor.At this time,debt joining and guarantee are similar to "brothers",which is difficult to distinguish.The essence of debt joining and guarantee is that both are used as guarantee purposes,similar to guarantee(especially joint and several liability guarantee).Although guarantee and debt joining are similar,their legal effects are quite different,so it is necessary to distinguish them.It is reflected in the attribute of debt(independence and subordination),the influence of debt change during the period of debt existence,the written form of guarantee,the legal guarantee period,the exercise of the right of recourse,the invocation of defenses and the transfer of debt.These differences lay the foundation that the third party's liability for coexisting debt commitments will be greater than that of guarantee.In the standard of distinction,Germany's "one size fits all" economic interest standard is of certain value,but its disadvantages are obvious.First,guarantee may also pursue its own economic interests.Second,economic interests are abstract and difficult to identify.Third,it is easy to ignore the interpretation of meaning expression when emphasizing the standard of economic interests.Therefore,although the standard of economic interest is regarded as a tendentious interpretation,it is difficult to be a decisive factor in determining the guarantee and debt joining.Therefore,this paper argues that the distinction between the two should be based on the theory of meaning interpretation and the status of interests.As far as the interpretation of meaning expression is concerned,first,it should be interpreted in terms of meaning.Because of the particularity of meaning,the word "debt addition" can be directly recognized.Because of the polysemy of meaning,the word "guarantee" agreed as guarantee is not necessarily the meaning of guarantee.If it is used together with the proprietary words under the guarantee system,it is the guarantee in the sense of guarantee law.If it is not,it should be comprehensively recognized in combination with the specific situation.Secondly,combining the form and language of the letter of commitment to infer the meaning,that is,to infer the interpretation,there are four types that often appear in practice: signing at the debtor can be recognized as debt joining.If the original debt is not mentioned but there is a specific repayment plan,it is presumed that the debt is added.The expression of "undertake joint and several guarantee liability" has more meaning of joint and several guarantee.The expression of "unconditional,waiver of all defenses" is the meaning of independent guarantee.For financial institutions that meet the subject requirements,it is recognized as independent guarantee,and for those that do not meet the subject requirements,it is recognized as debt accession.Third,the letter of commitment has the meaning of taking responsibility successively,which can be regarded as general guarantee.Fourthly,considering the time when the letter of commitment is issued,the agreement issued by the third party shall be deemed as debt accession when the main debt period has expired,because the guarantee is to assume the liability for the debtor's failure to perform the debt in the future.In determining the liability for exemption,the distinction should be based on the interpretation of the meaning of the text.The meaning of the interpretation should be aimed at the nature of the document and should consider whether the creditor is exempt from the original debtor's obligation to perform.Because debt transfer is of great interest to creditors,even the words "substitute" and "replacement" cannot be used to infer the meaning of exempted debt commitments directly from the terms.When a third party issues a loan note,it should be determined in conjunction with the purpose of issuing the loan note The debit note issued for the convenience of payment settlement can be regarded as an exempted debt commitment,while the debit note issued by a third party due to the personal relationship with the debtor should be considered as a debt addition or guarantee.Finally,for the doubtful situation,it should be determined that the original debtor does not break away from the original debt.When the expression of intention can not explain the true intention of the parties,the consequences of the confirmation of the letter of commitment shall be considered.That is to say,the nature of the agreement should be considered in combination with objective factors such as the purpose of the repayment contract,the degree of association between the undertaker and the contract interests.At this time,what plays an important role is not the inner intention of the parties,but the normalization of different interests of different situations by law.Finally,in the face of doubt,it is arbitrary whether the suspect presumption is debt accession or the suspect presumption is guarantee.This paper advocates to distinguish civil and commercial acts.Because of its profit-making,business and professional characteristics,commercial behavior should bear the risk of unclear expression of will,while the civil subject presents "weak but dangerous",with small economic and social forces.When providing guarantee for others,the civil field should pay more attention to protecting the interests of the guarantor and recognize it as guarantee.