A Study On Guarantee Issues Of Artificial Person Branches

The "Civil Code of the People’s Republic of China"（hereinafter referred to as the "Civil Code"）and the Interpretation of the Supreme People’s Court on the Application of the Guarantee System of the "Civil Code of the People’s Republic of China"（hereinafter referred to as the "Judicial Interpretation"）in the guarantee section of artificial personbranches changes have been made,but there are still problems.First,in the authorization procedure for the guarantee of a commercial bank branch,the court has disagreements when determining whether a commercial bank branch obtains the guarantor qualification through general authorization or level-by-level authorization..Because the commercial bank business license records the business scope of a commercial bank does not belong to the authorization method of commercial banks and the authorization level model of commercial banks is relatively complete,so the court should take specific authorization or level-by-level authorization as the standard when determining whether a commercial bank has obtained the qualification of guarantor.Secondly,in the determination of guaranty responsibility,judicial in practice,there is a problem of ignoring the goodwill of the counterparty and thus directly determining the counterparty’s fault.Although Article 11,Paragraphs 2 and 3 of the Judicial Interpretation stipulates that the counterparty is good-faith,in judicial practice,there is confusion in Article 11,Paragraphs 2 and 3 of the Judicial Interpretation.Due to the essential difference between goodwill and fault,it is necessary to clarify the connotation of goodwill when the branch of a artificial personand the counterparty carry out the act of guarantee,strictly distinguish between goodwill and fault in fault,and strengthen the protection of counterparty.The pre-procedure of good faith determination.Secondly,the method of good faith of the counterparty should be judged.When the limitation of the branch company’s external guarantee is a deliberate limitation,it should be presumed that the counterparty is in good faith.When the limitation of the branch’s external guarantee is a statutory limitation,it should be presumed that the counterparty is not goodwill.In addition,since the content of goodwill includes ignorance and no gross negligence,when judging the goodwill of the counterparty,a strict distinction should be made between general negligence and gross negligence,that is,when the counterparty has performed the minimum duty of care in examining the qualifications of the guarantor,it should be presumed that the counterparty is bona fide,and attention should be paid to the interception of the time point of judging the goodwill of the counterparty,otherwise it will increase the counterparty’s undertaking of the guarantee liability.Finally,in the litigation procedure,there are differences in the representation of the legal person’s branch as a litigant in judicial practice.Because the artificial personbranch’s participation in litigation is a statutory type of arbitrary litigation responsibility under the abnormal configuration of litigation enforcement power and the reason for its property dependence on the legal person,it should be determined that the artificial personbranch’s participation in the litigation is an endowment of the ability of its parties.It is suggested that the judicial organs should firstly distinguish and judge the qualifications of guarantors in strict accordance with the provisions of different types of artificial personbranches as guarantors.Secondly,they should carefully distinguish between the goodwill and fault of the counterparty,and finally achieve a balance between the legality of the parties.interests,accurate judgment,guarantee responsibility,and maintain judicial justice.