Research On The Guarantee Liability After The Guarantor's Death

In recent years,there have been a large number of disputes in China's courts concerning the liability of guarantees after the death of the guarantor.Compared with other guarantees,the guarantee is based on the guarantor's credit and unspecified property as the main debt guarantee.It has the characteristics of human guarantee,and it is precisely because it has both personal and property properties.The issue of the elimination of responsibility has divided.In addition,because the current law in China does not clearly define the nature of the liability of guarantee,leading the theoretical community to put forward different views on the conditions under which the guarantee of liability can be assumed after the death of the person.In judicial practice,this issue is different from the same Judgment phenomenon,other legal issues related to the issue of guarantee liability after the death of the guarantor also lack a judicial trial basis,and there is a serious lack of guarantee liability system in China about after the death of the guarantor.This not only creates chaos for China's judicial theoretical research,but also undermines the unity and authority of judicial practice.This article is based on the necessity of discussion to study the issue of guarantee liability after the death of the guarantor.In addition to the introduction and conclusion,this article includes the following five chapters:Chapter one raises questions.Based on the special attributes of guarantees,this chapter raises questions about whether the death of the guarantor leads to the elimination of the guarantee liability from the perspective of the existing theories about whether the guarantee has personal specificity and the provisions of the law on the elimination of the guarantee liability.In addition,the legal provisions on the nature of guarantee responsibility are not clear,leading to academic differences on how to assume the guarantee responsibility after the death of the guarantor.Judicial practice also has the phenomenon of different judgments in the same case.Based on the necessity of perfecting the guarantee liability system after the death of the guarantor,this article considers and studies the issue of guarantee liability after the death of the guarantor.Chapter two reviews the doctrine of guarantee responsibility after the death of the guarantor.In this chapter,the"guarantee responsibility extinction theory" and"guaranteed liability persistence theory" related to the issue of whether the guarantor's liability is eliminated after death,and the"guarantee liability unconditional commitment theory" and "guaranteed responsibility have the "conditional commitment theory"analyzes separately and believes that the guarantee responsibility is not eliminated by the death of the guarantor,If the guarantee responsibility has already occurred at the time of the death of the guarantor,its legacy should be used to bear the guarantee responsibility.Chapter three analyzes the case of guarantee responsibility after the death of the guarantor.This chapter discusses the judging ideas of judicial practice on the issue of guarantee responsibility after death of the guarantor through case analysis,and summarizes the current mainstream opinion of judges in determining the issue of guarantee responsibility after death of the guarantor.It should be based on the fact that the guarantee liability has already occurred at the time of the death of the guarantor,and the generation and determination of the guarantee liability are affected by the guarantee period,the limitation period of the lawsuit,the type of guarantee and the exercise of the right of defense.Chapter four the legislative review of the guarantee responsibility after the death of the guarantor.This chapter studies the starting point of guarantee liability,the limitation period of guarantee liability,the subject of guarantee liability,and the scope of guarantee liability involved in the issue of guarantee liability after the death of the guarantor,to investigate and study the issue of ensuring responsibility.Chapter five the system of guarantee responsibility after the death of the guarantor is perfect.This chapter studies the problems existing in the system of guarantee liability after the death of the guarantor,and proposes corresponding perfect suggestions on the issues related to the existence of the guarantee liability and the subject and scope of the guarantee responsibility after the death of the guarantor.Measures such as the heritage administrator system,clarifying the nature of the subject of the grant,and clarifying the scope of responsibilities,enriching the guarantee theory system,and establishing a sound guarantee responsibility system after the death of the guarantor are of positive significance to China's legal system construction.