Research On Protection System Of Natural Person Guarantor’s Rights

Guaranty is a kind of guarantee based on the subject’s credit,which mainly protects the realization of creditor’s rights in the form of contract.Based on the characteristics of the guaranty contract and the value tendency that guaranty system tends to protect the interests of creditors,guaranty for others is usually an activity with high risk and heavy responsibility.In addition,there are various types of guaranty subjects.In addition to operating institutions and individuals that provide paid guaranty,there are also a large number of guarantors that provide guaranty for debtors free of charge.Such guarantors are usually natural persons who enter the guaranty relationship based on their special relationship with debtors,and their ability to resolve risks is far less than other types of guarantors,especially when facing professional creditors.The weakness of natural person guarantor is more obvious.Although the Civil Code has modified the contents of the original guaranty system which are not in accordance with the reality,there is no distinction between the natural person guaranty and other guaranty types in the legal text,and the former is not given special protection.In addition,there are still some problems in the general provisions of the current law on the rights of guarantors,so that the natural person guarantors can not achieve the purpose of safeguarding their legitimate rights and interests through the general provisions of guarantors in the absence of special relief channels.The Civil Code places the content of guaranty contract in the contract book independently,which means that the legislator intends to change the nature identification that guaranty is only a form of guarantee,and begins to emphasize the equality of the legal status of creditors and guarantors in guaranty relationship.This paper mainly discusses to what extent the law should be equity-oriented,adjust the rights and obligations of the parties to the guarantee contract,and balance the interests of the good natural person guarantor while protecting the interests of creditors.This paper mainly includes five parts:The first part starts with the concept of the guarantee of natural person,distinguishes the guarantee of natural person from other guarantee types,analyzes the theoretical basis of the guarantor rights of natural person from the perspective of contract freedom and contract justice,and proposes that the guarantor rights of natural person should be based on the distinction of different types of guarantee.The second part,by combing through the development history of the natural person guarantee right system,summarizes the characteristics of our guarantee system,which emphasizes the guarantee responsibility and ignores the guarantee right,thus leads to the necessity of strengthening the protection of the natural person guarantee right.The third part analyzes the inadequacy of the protection system of natural person guarantee from two aspects: general and special.First,there are only general rights provisions applicable to all types of guarantors in the current civil law,and there are no special protection rules for natural person guarantors.Second,there are many problems in the existing general rights system of guarantors,such as broad scope of guarantee,congenital deficiency of counter-guarantee system,narrow scope of application of pre-recovery system,limited internal recovery of joint guarantee,etc.These problems lead to the lack of special relief of natural person guarantor can not get effective system protection through the general provisions of guarantor.The fourth part takes Germany,Japan,France and other codified countries as reference objects,introduces the foreign experience of the protection of natural person guarantor’s rights,and seeks useful experience for the perfection of the protection system of natural person guarantor’s rights.The fifth part is to establish a sound and effective system of natural person guarantor’s rights from the aspects of general and special provisions.On the one hand,it recognizes the obvious difference between the state of the guarantor’s right and the state of the guarantor’s right,and improves the existing provisions of the guarantor’s right system from the aspects of appropriately limiting the scope of the guarantor,expanding the legal reasons for exercising the right of pre-recovery,expanding the right of subrogation and so on.On the other hand,on the basis of the practical needs of the rights of guarantors,the special protection of the guarantors of natural persons should be strengthened by adding the right to know and the negation system of the validity of the guarantors of natural persons’ waiver clauses in financial guarantee contracts.