| Debt accession originated in practice,and has gradually developed in practice,becoming a common situation in market transactions.In complex transaction practices,Debt accession can be used to simplify liquidation relationships or increase liability property.However,when market traders conclude contracts,in order to make Debt accession conform to the current legal norms as much as possible,and it is inevitable to find applicable norms in other legal systems,so that Debt accession is naturally confused with other related legal concept since its appearance,especially Guarantee,have historically been difficult trials.The reason why Debt accession is easy to be confused with Guarantee is mainly based on three reasons: First,there are many overlaps in the establishment mechanism of Debt accession and Guarantee,which are reflected in the three core elements of subject,debt,and related function positioning.Second,the long-term legislative blank makes the parties lack the awareness of distinction,and the form of declaration of intention of Debt accession and Guarantee in practice are diverse and vague,which is another reason for the difficulty in distinguishing.Finally,the legislative norm has not responded to this.Although courts at all levels have issued relevant judicial interpretations and guiding opinions on the basis of summarizing civil trial experience,this has not changed the situation.The introduction of the Civil Code has made Debt accession finally being statutory,but the relevant norms and supporting judicial interpretations are still unclear,and it is difficult to provide clear guidelines for the application of the Debt accession system,especially it is difficult to realize the effective distinction between Debt accession and Surety,which is the most prominent problem faced in judicial practice.Regarding whether the distinction between Debt accession and Guarantee is necessary,the common law system regards Debt accession as Guarantee,while the civil law system emphasizes the importance of the distinction,mainly because the legal effects of the two are different,which will directly affect the rights and obligations of the parties.:First of all,the nature of the debt borne by the third party is completely different,the debt borne by the guarantor is complementary,and the debt borne by the acceding party is completely independent.Then,the content of the right of defense enjoyed by the third party is completely different.The guarantor not only enjoys all the defense rights enjoyed by the debtor,but also has the independent defense rights existing in the guaranty relationship,while the acceding party can only enjoy the same defense rights as the debtor.Thirdly,the third party has different influence on the effect of debt transfer,the transfer of debt requires the consent of the guarantor,but does not require the consent of the acceding party.Next,under the circumstance of debt accession,the creditor is not subject to the guarantee period regulation,which is also an important reason that affects the party’s claim to turn the Guarantee to the Debt accession in practice.Finally,in the absence of an agreement between the parties,the acceding party does not enjoy the statutory right of recourse,while the guarantor has the statutory right of recourse directly conferred by the law.From the point of view of the perspective of legal effect,the acceding party takes on more risk than the guarantor.To prevent the party having the advantage of knowledge,experience,understanding,etc.,from taking advantage of that advantage to make expressions or interpretations contrary to the true will,when a violent conflict occurs.It is necessary to make a strict distinction between Debt accession and Guarantee.Judge whether a third party’s commitment to perform the obligation constitutes Guarantee or Debt accession,in principle,the judgment of propriety should be based on the explicit wording of "guarantee" or "Debt accession".When there is a contradiction with the wording,the wording is ambiguous or ambiguous enough to support the interpretation that deviates from the text,it is necessary to combine the interpretation rules of declaration of intention.In the case where the interpretation of the text is difficult to clarify,whether the third party has direct and actual economic interests in the performance of the debt can be used as the substantive standard,but this standard should not be used alone,it is advisable to make a comprehensive judgment on all the circumstances of the case according to the standards of actual performance behavior and performance sequence.In practice,there is a situation in which the guarantee is provided after the debt expires.At this time,it is not appropriate to determine that it is a guarantee,and it should be a new creditor-debt relationship.As for whether it can be identified as a debt accession,it still needs to be comprehensively judged by the above criteria.In order to enhance the convenience of the application of the law and the predictability of the judgment result,and to follow the autonomy of the parties and balance the protection of the interests of all parties,the rule is established that when it is impossible to judge whether civil action is debt accession or guarantee,it should be recognized as guarantee,but the rule must be paid to the applicable limits. |
