Study On The Legal Application Of Credit Enhancement Measures For Independent Contractual Relationships

The level of credit is crucial to the development of an enterprise and an individual,and various subjects have created various credit enhancement measures to improve their own credit and facilitate their trading activities.Credit enhancement measures are not legal terms per se,and Article 36 of the Interpretation of the Supreme People’s Court of the Application of the Relevant Guarantee System of the Civil Code of the People’s Republic of China bridges the gap between mapping them to the existing legal system.However,in real life,it appears that some credit enhancement measures cannot fully correspond to the established types in the existing legislation,so the fourth paragraph of Article 36 of the Judicial Interpretation of the Security System provides for a bottom-up provision.This category of credit enhancement measures is referred to as credit enhancement measures for independent contractual relationships in the Understanding and Application of the Supreme People’s Court’s Judicial Interpretation of the Civil Code Security System.The issues of how to determine the nature of independent contractual relationship credit enhancement measures and the principles and limits of the analogical interpretation of guarantee rules are crucial to the determination of the rights and obligations of the parties and the correct handling of related disputes.This article believes that the determination of the nature of credit enhancement measures for independent contractual relationships should adhere to the priority of textual interpretation,and at the same time combine with the elements of substantive judgment summarized from the judicial decision to analyze.At the same time,from the theory of analogy application,the specific application of the guarantee rules in the credit enhancement measures for independent contractual relationships is discussed to make up for the lack of discussion of the applicable legal techniques in the academic community and to improve the logical chain.The specific analysis is developed in the following parts.Part Ⅰ clarifies the concept and nature of credit enhancement measures for independent contractual relations.Comparing the credit enhancement measures for independent contractual relationships with typical guarantees,and starting from the attitude of extraterritorial legislation on independent guarantees,based on the perspective of comparative analysis and combined with the systemic interpretation method,it is believed that the concepts of having a guarantee function and guarantee should be distinguished,and the positioning of credit enhancement measures for independent contractual relationships in our law system is determined as a new type of human guarantee with independence.At the same time,many systems have already made a breakthrough in the subordination of guarantees,which should not be taken as the proper feature of all guarantees,so credit enhancement measures for independent contractual relationships also do not need to be insisted on.In Part Ⅱ,the cases in the past 2 years since the implementation of the interpretation of the guarantee system is organized,and it is found that the main differences in judicial decisions are focused on two aspects of the nature of the determination and legal effects,which are manifested in three differences.The reason for the difficulty in determining the nature of credit enhancement measures for independent contractual relationships lies,firstly,in the abstract nature of all the provisions of the law itself,and secondly,in the context of the unity of civil and commercial affairs,the courts usually consider the financial rules carefully.The tendency to over-apply the guarantee rules stems from the guidance of the sequence of paragraphs in Article 36 of the interpretation of the guarantee system,and the lack of general rules for the value of China’s guarantee system also leaves the courts at a loss in the face of credit enhancement measures for independent contractual relationships,and they are inclined to rely on the guarantee system explicitly determined by the Civil Code.The next sections respond to the problems identified.Part Ⅲ outlines and refines the nature determination scheme.The process of determining the nature of the guarantee needs to explore the meaning of the parties,and the process should follow the principle of literal interpretation,but the literal interpretation is also limited by the ambiguity of the word expression and the intentional choice of the parties.The content,duration,manner and terms of payment are weak strength elements,the consideration payment is a medium strength element,and the asset segregation and structural nesting are high strength elements.The combination of textual interpretation and substantive elements to better identify the credit enhancement measures for independent contractual relationships,fully respect the autonomy of the parties.Part Ⅳ discusses the application and limitations of the guarantee rule from the legal basis of analogous application and considers that there are legal loopholes in the credit enhancement measures for independent contractual relationships and their similarity with the guarantee system.The logic of “legal loopholes-similarity between systems-application of rules to be proven” can be applied to credit enhancement measures for independent contractual relationships by analogy,but the application should be limited.The rules of warranty,such as defense,recovery and warranty period,are closely related to the subordination or complementarity of warranty,so they are excluded from the application in terms of purpose interpretation and normative effect;while the restriction of the subject matter helps to explore the true intention of the parties more precisely in order to determine the nature of credit enhancement measures,and the special restriction of the subject matter is mainly to guarantee the realization of specific functions,which should be applied.