On The Distinguish Between Guarantee And Coexisting Debt Commitments

For a long time,the system of "accession of debt" has been outside the code of law,there is no clear law to regulate it,and it is only used in judicial practice.With the introduction of "Civil Code of the People’s Republic of China"(hereinafter referred to as "Civil Code"),its additional Article 552 establishes this system on the legislative level for the first time,which closes the loophole in the original "Contract Law".However,this article does not clearly put forward the legal criteria to distinguish the debt accession and guarantee,it still does not fundamentally solve the problem that the two are often confused in practice,and because of the different legal effects of the two on the parties,it is still necessary to distinguish the two.In this regard,this part starts from practical cases,analyzes and discusses the distinction between the two from the following four aspects,in order to clarify the problems between the two,and establish a set of judgment standards that is beneficial to judicial practice and effective balance of the interests of the parties.First of all,starting from the problems encountered in the current legislation and judicature,this part analyzes the function orientation of the debt accession system and the obstacles of the existing system to distinguish it from the guarantee.Then it summarizes the difficulties in distinguishing the two systems in the judicial practice,that is,there is no unified authoritative judgment standard and the dilemma of the true intention of the parties.Therefore,it is necessary and important to distinguish them.Secondly,the part sorted out the differences in the application of debt accession and guarantee in the academic theory,compared and analyzed the differences in the legal characteristics and legal effects of the two,explained the differences in the risks undertaken by the debt accession party and the guarantor from the aspects of constituent elements,subordination,liability recovery,right of defense and so on,and emphasized the reasons why the two should not be confused.Thirdly,this part introduces the legislative tendency and practice research of non-territorial countries on the distinction between debt accession and guarantee,and discusses the reference standard suitable for the localization of Chinese judicial practice by analyzing and judging the wisdom of non-territorial legislation and cases in distinguishing the two.Among them,the reflection and revision of the standard of economic benefit provides a certain theoretical basis for the construction of the later standard.Finally,on the basis of extracting the problems that need to be solved in practice,this part clarifies the differences between the two in terms of academic principles,and proposes to construct a system standard to distinguish the two.That is to say,this part takes the interpretation rule of expression of meaning in Article 142 of the Civil Code as the construction center,gives priority to the interpretation of textual meaning as the starting point,and combines the interpretation elements such as system interpretation and so on.Explain situations where the language is not clear;In the case of no interpretation of the parties’ intention,the author no longer sticks to the meaning of the text,but explores the real intention of the parties in the contract by combining the purpose of the contract with the actual performance of the parties.However,if there are still doubts after exhausted the above two approaches,it is necessary to take Article 36 of the Interpretation of Guarantee System as the starting point,and on the basis of reasonably taking into account the interests of all parties to the contract,allow the judge to identify the true intention of the parties through presumption as a general guarantee.