| The first part of the article mainly discusses the necessity of distinguishing the coexistence of debt bearing and joint and several guarantee.First of all,the author objected to some viewpoints in judicial practice,and then mainly analyzed the differences between the two in legal effect from three aspects: rights and obligations,duration of debt,and debt bearing.The purpose of this paper is to explain the fact that the determination of the nature of liability must have a substantial impact on the rights of the parties in dispute,and the necessity of distinction.The second part of the thesis summarizes the existing standards of distinction in judicial practice from two aspects of "interpretation of meaning" and "presumption standard".The third part of the paper is based on the second part.It analyzes the reasons why it is difficult to distinguish debt joining and joint guarantee in practice.There are four main reasons: the effect of guarantee coincides with the purpose of guarantee contract,the similar elements of the two,the supplementary dispute of joint and several guarantee,and the debtor or debt acceptor.It is precisely because of the analysis of this paper that the reason for the confusion between the two is clear,which is the basis for the completion of the distinction between debt joining and joint and several guarantee,so this part is called the feasibility of distinction.In the fourth chapter,the author compares the concepts of debt accession and joint guarantee from four parts: subordination,the certainty of the original debt,whether debt accession can be applied by analogy to the provisions of guarantee and the presumption standard.The above four parts mainly include domestic and foreign scholars’ understanding of the concept of concurrent debt bearing and joint and several guarantee,as well as the listing of comparative law.The fifth and sixth chapters are the core contents of this paper.First of all,this part affirms the priority rules of literal interpretation,and proposes that if the parties clearly define their own behavior as "debt joining" and agree on "joint repayment" or "payment by me",the court shall,in principle,determine the identity of their debt acceptor.If there is an agreement on the share of liability between the actor and the original debtor,debt accession can be excluded;if the parties write the word "guarantee",the meaning of the clause shall be understood in combination with the whole,and attention shall be paid to the fact that there is a situation that is not intended to bear the guarantee liability,as well as the "guarantee" agreement that is essentially debt accession;the law in the field of civil law does not prohibit freedom,according to the meaning Under the principle of autonomy,the acceptor can make the commitment of both acceptor and guarantor.Secondly,the actor agreed on the conditions of repayment,but the content of the conditions made the independent debt or subordinate debt vague.The author thinks that the presumption standard and suspect presumption should be applied successively.If the actor makes a "non agreement",this expression is consistent with the premise that the general guarantor bears the liability of debt repayment stipulated in Article 17 of the guarantee law.The order of performance is the important embodiment of the subordination of debt.Therefore,the expression of intention should be recognized as a general guarantee in principle.However,at the same time,we should pay attention to the overall review of the contract terms,and be careful to make exceptions that deviate from the interpretation of the text;the added debt is an independent debt,and the commitment of "waiver of the right of defense" made by the actor must take effect.Therefore,the author is more inclined to recognize the agreement of this kind of settlement method as debt accession;if we use "unable to pay on time" as the stop condition of debt accession,we can not directly exclude joint and several guarantee according to the agreement of "unable to pay on time".The reason is that there is no difference between the joint surety and the debt acceptor in terms of the order of performance when the debt expires.However,we can first exclude the possibility of general guarantee according to this agreement,and then combine with other circumstances to distinguish debt joining and joint guarantee.However,before exploring other cases,the court should first pay attention to the form of contract,the time when the contract is established,and the position of the dispute contract in the whole contract.The reason is that the original contract can establish the main debt and guarantee debt at the same time,but it can not conclude the original debt and join debt at the same time,except for the conditional debt joining.Through the observation of the identity of the parties to the contract,it is helpful to find out whether there are preconditions for the assumption of responsibility.The standard of debtor’s appearance distinction is reasonable and feasible.In the process of debt joining,debt acceptors tend to pursue their own interests and have the willingness to bear the debt independently,so they are more willing to bear the corresponding risks.In the face of debt accession,the law does not need to provide special protection for the acceptor.The author thinks that although there are some differences in the nature of the coexisting debt undertaking and benefit third party contract,if the latter is agreed by the creditor,there is no difference in the substantive legal effect between the latter and the former.Therefore,it is advisable to expand the interpretation of "the actor’s own interests" in order to reduce the burden of litigation.At present,the standards of direct and actual interests in China’s judicial practice are not limited to building a bridge between the existence of interests and the participation of debts.It focuses on the price paid by the observer for realizing such interests,or the attitude towards the original contract.In the case,the court,based on the appearance of behavior,judges whether the actor intends to bear the debt independently for this kind of interest.On the one hand,it shows that the court of our country does not think that the content of interest directly determines the nature of responsibility,on the other hand,it also avoids the dispute of interest definition.In essence,the action court is seeking whether the actor has the intention to bear the independent debt.It is consistent with the German court on how to explain the problem of debt accession or guarantee,which tends to identify almost all suspicious situations as guarantee actions.The author thinks that the acceptors who have the motivation to enter into the debt and the behavior of clearing the original debt before the maturity of the debt should be recognized.However,the standard of debtor’s appearance distinction is imperfect.First,in many corporate guarantee cases,we can find that the court often denies the intention of corporate to join in debt at the first time,because the independent relationship between them and the limited liability under the company law conflicts on this issue,and draws a conclusion based on the existence of the relationship,which easily leads to the overhead of the limited liability system in the company law.Second,it is easy to ignore the subjective of the parties and interpret the expression of intent directly from the objective behavior,which may lead to the disguised application of the principle of protecting the interests of creditors.It is difficult for us to get the certainty judgment that the behavior is debt addition through the exclusion of guarantee.Before the expiration of the time limit for performance,the guarantor may refuse to bear the liability for the performance of the principal debtor’s non performance.However,the certainty of guarantee debt does not mean that the actor denies his secondary performance status.There is no contrary agreement in the expression of intention to promise to repay the overdue debt and the way of undertaking the guarantee liability.Therefore,we can not conclude that the original intention of the actor is to bear the independent debt,which can not be conjectured;in the judicial practice of our country,there has been a universal understanding for a long time,that is,guarantee can not be presumed.However,in the case where the intention of debt joining and joint guarantee is not clear,judicial practice does not seem to be averse to the establishment of guarantee by presumption.In my opinion,when it is necessary to decide whether to join or guarantee the debt in a case,the non presumption of guarantee cannot be applied.First of all,the rule comes from the situation of whether guarantee is established or not,not the result of risk identification between debt joining and joint guarantee.Secondly,if the rule of non presumption of suretyship is applied to the cases of debt accession and joint and several suretyship,based on the situation that the expression of will is one of the two choices in most cases,the court will inevitably come to the conclusion that "when the expression of will is in doubt,the priority should be given to the determination of debt accession".That is to say,the court directly determines that the act is debt addition by deducting guarantee.In my opinion,this practice is not appropriate.In order to discuss the point of view,the author puts forward three irrationalities of exclusion of suretyship and two disadvantages of suspect presumption as debt addition.Presumption standard and suspect presumption are two aspects of interpretation of intention expression.The author discusses the advantages of presumption of doubt as joint and several guarantee,and draws the conclusion that the behavior should be presumed as joint and several guarantee if it is difficult to judge according to the above standards in a case.The seventh part is the conclusion of the paper.The author thinks that in the process of distinguishing whether the behavior is debt joining or joint guarantee,we should first judge whether the actor has a clear agreement that it is debt joining and joint guarantee.Secondly,we need to further explore whether there is any agreement on the terms of payment for the debts that are not explicitly agreed on in the expression of will.In the process of examining whether the conditions of repayment exist,we should also pay attention to whether the identity of the actor has been agreed in the original contract and what the agreed content is.Finally,as for the specific content of "other distinguishing circumstances",the author believes that it is necessary to judge whether the person expressing the intention has the appearance of debtor.The process of finding out whether it has the appearance of debtor is also the process of finding out the state of the actor’s own interests.But there is no need to stick to the interests of "self-interest" or "altruism".If it is difficult to find out the state of the actor’s own interests,the act should be presumed as joint and several guarantee. |
