The Influence Of Bankruptcy Proceedings On The Application Of Guarantee Period Rules

The guarantee period system is an important system to balance and protect the interests of the guarantor in the guarantee contract,and the system value of the bankruptcy procedure lies in the fair protection of creditors and debtors.The value orientations of the two systems seem to be very different,but both involve the complicated legal relations and interest relationships among creditors,debtors and guarantors.However,the relevant provisions on the protection of the rights of guarantors in the legislation of the "Bankruptcy Law" are absent.This does not mean that the interests of creditors and debtors only need to be paid attention to in the bankruptcy proceedings.On the contrary,if there is no provision in the special procedure law,general civil rules should be applied,such as the guarantee period system,to provide special protection for the interests of the guarantor.However,even in the general civil substantive law,there is only a short sentence regarding the application of the guarantee period in bankruptcy proceedings.What’s more,there is no consensus on the general applicable rules of the guarantee period in theory and practice,and it involves special bankruptcy procedures.Therefore,it is necessary to thoroughly analyze the applicable rules in the bankruptcy procedure during the guarantee period and optimize them appropriately.This article is introduced from the perspective of interest balance,divided into five parts to expand the discussion.The first chapter is the basis of this article,analyzing the special significance of the guarantee period rule in bankruptcy proceedings.First of all,sort out the connotation,nature and general functions of the guarantee period in a general sense.Its definition is more refined,which is "determine the period during which the guarantor assumes the guaranty responsibility",but its connotation should include the specific expression of the guarantee period in Articles 692-694 of the Civil Code.There are many different views on its nature.The guarantee period should be a special period,but it is a special right exercise period,not a special period that can produce the effect of eliminating the creditor’s rights.The unique functions of the guarantee period are:highlight the protection of the rights of creditors in the guarantee system,and provide special protection to the interests of the guarantor;emphasizing the application of autonomy of will in guaranteeing debt relations;promoting the development of credit guarantees and promoting financing and commodity circulation.Secondly,the functional positioning of the bankruptcy law is explained,and combined with the general meaning of the guarantee period,it is concluded that perfecting the rules for the application of the guarantee period system in the bankruptcy procedure is actually on the basis of respecting the value of the bankruptcy law system.Further improvement,so that creditors,debtors and guarantors can achieve a balance of interests in the case of debtor bankruptcy.The specific manifestations are as follows: First,in the debtor’s bankruptcy procedure,the application of the deformation of the guarantee period rule breaks the barriers to the special protection of the bankrupt creditor’s interests in the bankruptcy procedure,and incorporates the guarantor’s term interests and recovery interests into the protection scope of the bankruptcy procedure;Second,in the bankruptcy procedure of the guarantor,the application of the deformation of the guarantee period rule prevents the creditor from losing the possibility of obtaining bankruptcy distribution due to the unexpired principal debt;third,in the case of the creditor’s bankruptcy,the application of the deformation of the guarantee period rule avoids the debtor the unreasonable reduction of property guarantees that the bankruptcy process will keep out of stagnation.The second chapter discusses the special applicable rules related to the guarantee period when the main debtor’s bankruptcy proceedings are initiated and terminated.One is that,when the bankruptcy procedure started,it is mainly to analyze the impact of the timing of the initiation on the application of the guarantee period: before the expiration of the main debt performance period,the initiation of the bankruptcy procedure causes the guarantee period to start in advance,and the incidental discussion on the guarantee debt The issue of how to deal with the interest of the guarantee period;during the guarantee period,the initiation of bankruptcy proceedings will have a certain impact on the conversion of the guarantee period to the statute of limitations.The other is that,when the bankruptcy proceedings are terminated,the newly implemented "Interpretation of the Guarantee System of the Civil Code" responds to three issues based on the changes to the old law.First,after the conclusion of the bankruptcy proceedings,the creditor’s claims against the guarantor should have a time limit.Second,according to the original analysis of the legal provisions,if the bankruptcy procedure ends within the guarantee period,the remaining guarantee period should be calculated.However,this calculation method is too unfavorable for the protection of creditors’ interests.Therefore,it is recommended to provide for an additional six months after the end of the bankruptcy procedure.So that creditors can claim their rights.Where the bankruptcy proceeding ends within the statute of limitations period,the remaining statute of limitations period shall be calculated.Third,if the guarantee contract is invalid,the guarantor shall not be exempted from liability for the creditor’s failure to assert rights against him during the guarantee period or the litigation of the guarantee debts after the bankruptcy proceedings are terminated.The third chapter sorts out the special applicable rules related to the guarantee period when the guarantor’s bankruptcy procedure is initiated.First,discuss the prerequisite issue,that is,whether the creditor can participate in the bankruptcy process and declare the creditor’s rights when the guarantor goes bankrupt.Through the analysis of the value orientation of the bankruptcy system and the guaranty system,and discuss the different viewpoints of the theories field and actual situation field,it is concluded that the guarantor is bankrupt though,the creditor can also participate in the bankruptcy proceedings and declare the creditor’s rights.But the time for the creditor to declare the creditor’s rights shall not exceed the guarantee period,otherwise the guarantee liability will be eliminated due to the passage of the guarantee period.Secondly,analyze the impact of the different timing of the initiation of the bankruptcy proceedings on the guarantee period: before the expiry of the main debt performance period,if the bankruptcy proceedings are initiated,the main debt performance period will not expire in advance,the guarantee period will not be calculated in advance,and the guarantee debt performance period will not be calculated.Even if there is an early maturity,it should not affect the creditor’s declaration of claims;in the guarantor’s bankruptcy procedure,the creditor’s claims claims should be subject to the dual restrictions of the bankruptcy procedure and the guarantee period.The guarantor will either no longer assume responsibility for debts.Chapter 4 discusses the special applicable rules related to the guarantee period when the creditor goes bankrupt.Mainly discuss the impact of the different timing of the initiation of bankruptcy proceedings on the guarantee period.One is that if the bankruptcy proceedings are initiated before the expiry of the performance period of the external principal claim,the performance period of the external principal claim may refer to Article 46 of the Bankruptcy Law,which shall be deemed to have expired when the bankruptcy application is accepted.The second is that the initiation of the creditor’s bankruptcy procedure during the guarantee period will not affect the creditor’s claim to the guarantor’s rights,nor will it affect the calculation of the guarantee debt statute of limitations.There are independent calculation rules.Finally,in the conclusion part,the main points of the full text are summarized.