Study On The Distinction Between Debt Accession And Guarantee

Article 552 of the "Civil Code of the People’s Republic of China"（hereinafter referred to as the "Civil Code"）stipulates the debt system for the first time,which to a certain extent remedy the legislative deficiencies in related fields.Due to the similarity between this system and the guarantee system and the fact that the third party’s expression of intention is often ambiguous in practice,the courts have different judgments on the third party’s expression of intention,and the lower and lower courts even have opposite judgments in the same situation.It can be seen from this that the theoretical research on my country’s debt participation system is not thorough enough.In judicial practice,the applicable rules for debt joining are also relatively vague,which is undoubtedly a major difficulty in judicial trials.This article draws on relevant documents of domestic and foreign scholars and searches for domestic and foreign cases.Finally,the selected case is the contract dispute case of Ruian Zhonghuahui Real Estate Co.,Ltd.v.Beijing Zhongtian Hongye Real Estate Consulting Co.,Ltd.（the following It is called the contract dispute case between Zhonghuahui and Zhongtian Hongye）for analysis and discussion,hoping to provide assistance to the relevant cases of debt joining litigation in my country.This thesis is divided into five parts,in addition to the introduction and conclusion,it also contains three parts: the first part is the question;the second part is to identify the necessity of the debt joining system and the guarantee system;In practice,the difference between the debt joining system and the guarantee system and how to determine when in doubt.The first part introduces the facts of this case,the judgments of the court of first and second instance,and the author’s thinking on whether the nature of the legal liability that Tianhongye Company should undertake is "joint and several liability guarantee" or "debt participation".The second part sorts out and analyzes the guarantee function of debt joining,the difference between debt joining and guarantee,and the judgment standard of debt joining and guarantee,in order to explore the necessity of debt joining and guarantee identification.The third part mainly focuses on how to determine debt participation and guarantee in judicial practice,and discusses how to determine this issue when there is doubt about whether the debt borne by a third party is debt entry or guarantee.By discussing the application of "presumption in case of doubt" and the judicial establishment of "in case of doubt,presumption of guarantee",and concluded that "in case of doubt,presumption of guarantee" fully respects the autonomy of the parties,Effectively balance the interests of all parties.Therefore,it is concluded that the nature of Zhongtian Hongye’s joint repayment responsibility should be joint guarantee responsibility.