Research On The Civil Law Mechanism Of Guarantor Protection

All along,whether in academic or judicial practice,less attention has been paid to the guarantor's rights and interests,resulting in the guarantor's responsibility being heavier than that of the creditor.In order to reasonably balance the rights of guarantors and creditors,this article takes the guarantor protection as the research perspective,through literature research,comparative research and other methods,and strives to establish a fair and reasonable balance mechanism to effectively ensure that the relevant rights of guarantors and creditors are better realized.Traditional law's position on guarantee lies in the performance of debt and the commitment of responsibility,so when balancing the interests of creditors and guarantors,they are more inclined to creditors.Judging from the provisions of the current law,with regard to the qualification of the guarantor,except for the specific exclusions for certain subjects,there is no specific provision for the qualification conditions of the guarantor;for the guarantee responsibility,in the case where the guarantee contract does not clearly stipulate The law only made general provisions after carrying out some enumerations,resulting in a large number of problems in practice that expand the understanding of the “cost of realizing creditor 's rights” and when the debtor goes bankrupt,the privilege of stopping interest calculation is only granted to the debtor and the guarantor does not enjoy it.Furthermore,there are a lot of cases of generalizing the responsibility of the guarantor in judicial practice;because the law strictly limits the scope of the guarantor 's right to claim in advance,the guarantor 's right to claim is not properly protected;when the guarantee coexists with the guarantee of the third person,The law has not recognized the right of mutual compensation between the two,etc.,resulting in the guarantor's rights and interests not being reasonably and effectively protected.Therefore,in order to protect the rights of the guarantor fairly and reasonably,and to make good use of the guaranty,first of all,it is necessary to distinguish civil and commercial guaranty,and clearly define the main qualification conditions of the guarantor in legal form.Second,balance the responsibility of the guarantor and reasonably limit the scope of the guarantor's responsibility.Except as clearly stipulated in the agreement,punitive damages should be excluded from the scope of the guarantor 's responsibility.It should also be clear that the “cost of realizing creditor 's rights” only includes the realization of creditor 's rights The necessary expenses and the termination of interest calculation when the debtor goes bankrupt shall be given to the guarantor equally.Third,expand the scope of the guarantor's right to advance claims to effectively protect the guarantor's claims.Finally,when the guarantee is mixed with the guarantee of the property,according to the order in which the guarantee contract is established,the two parties are given the right to seek mutual compensation between the two,to protect the interests of the guarantor 's reasonable trust,and to share the loss of the guarantee responsibility,so as The balance of interests of all parties.