| Article 552 of the Civil Code of the People’s Republic of China stipulates the debt accession system,which is the first time to clarify this system from the level of civil code.It makes up for the deficiency of previous contract legislation in Our country.However,due to the great similarity between debt accession and guarantee,similar to "brother",it is often difficult to distinguish,and in practice,the expression of meaning made by the third party is often unclear,which brings great difficulties to the judgment of debt accession and guarantee and its legal application.However,although guaranty and debt accession are similar,their legal effects are greatly different,and their impacts on the interests of the parties are also huge,so it is necessary to distinguish them.In view of the dilemma of the demarcation between debt accession and guarantee in judicial practice,this paper analyzes and discusses the demarcation between debt accession and guarantee from four aspects,in order to help judicial practice judgment and the protection of the interests of the parties.First of all,it analyzes the different legal effects of debt accession and guarantee.The two are quite different in debt attribute,debt duration,defense reason invocation and third party right of recourse.The guarantee debt is generally lighter than the debtor’s debt,so it is necessary to identify the two.This paper summarizes two difficulties in distinguishing debt accession and guarantee in judicial practice,that is,unclear expression of intention of parties and unclear standard of economic interest.Secondly,explore the form of debt to join and guarantee the judicial determination of the standard,to direct interpretation rules shall prevail,often contract language most can directly reflect the real intention of the parties,but sometimes a word may have multiple way of understanding,and even there will be a completely different interpretation,so can’t fully constrained Yu Wenyi explain to judge.From the contract content,form and the actual performance of the parties and other aspects,carry on the presumption of meaning expression,explore the true intention of the parties.Thirdly,explore the substantive criteria of judicial judgment of debt accession and guarantee.In terms of distinguishing standard,the principle of creditor’s interest protection has been abandoned in practice,and the standard of economic interest has been turned to.Although this standard has certain rationality and reference value,economic interest is often abstract and difficult to identify,and sometimes emphasizing economic interest standard is easy to ignore the interpretation of meaning,and its disadvantages are obvious.Therefore,the judgment standard should be based on the payment in consideration.If the third party’s performance of the debt is determined without payment in consideration,the judgment should be made separately from ordinary civil acts and commercial acts.Finally,due to the complexity and diversity of cases in practice,it may not be possible to make a clear distinction between debt accession and guarantee after using the above judgment method.In this case,presumption rule should be applied when there is doubt.Through the value judgment and analysis of legal interest,it is more reasonable and legal to apply the rule of doubtful presumption as guarantee. |
