A Study Of The Liability Of A Guarantor At Fault Where The Main Contract Is Void

Paragraph 2 of Article 17 of the Interpretation of the Supreme People’s Court on the Application of the Civil Code of the People’s Republic of China on the Guarantee System(hereinafter referred to as the "Interpretation of the Guarantee System")stipulates that when the main contract is invalid,the at-fault guarantor is still liable for compensation,but there are still many issues to be discussed or not really resolved,and there are also debates on these issues in academia and practice,mainly focusing on the nature and scope of the guarantor’s liability,and there are many understandings of the guarantor’s fault in judicial practice.Based on judicial cases and combined with the method of textual interpretation,this paper aims to clarify the problems existing in the judicial practice of existing provisions and put forward corresponding suggestions,in order to provide reference for the handling of this problem in practice.The article is mainly divided into four parts:The subject of the first part is the nature of the guarantor’s responsibility.Starting from the existing mainstream view of "contractual negligence liability theory",this part distinguishes the invalidity of the guarantee contract into two situations: its own cause of invalidity and invalidity due to the invalidity of the main contract,and at the same time combines the form of the guarantor’s fault and the general rules of contractual negligence liability,and finally the author believes that only when the guarantee contract has a separate cause of invalidity,and the guarantor is not at fault for the invalidity of the main contract,its liability is contractual negligence liability,otherwise the nature of the guarantor’s liability is tort liability.The second part distinguishes the fault of the guarantor into the fault of the invalidity of the main contract and the fault of the invalidity of the guarantee contract through the common fault determination method in judicial practice,clarifying that simply knowing that the main contract is invalid cannot be the standard for determining the fault of the guarantor,and also promotes the conclusion of the main contract,and the guarantor should know that the main contract has invalid reasons under three special circumstances.Part Ⅲ focuses on the scope of the guarantor’s liability,and discusses specific issues such as the order of responsibility,the specific scope of liability and the issue of recovery after assuming responsibility.The existing norms limit the liability of the fault guarantor to "not more than 1/3 of the part that the debtor cannot pay",giving judges certain discretion.However,in judicial practice,a considerable proportion of judgments do not exert discretion but directly judge 1/3of the responsibility,and only a smaller proportion of judges determine the scope of the guarantor’s liability according to the magnitude of the fault.Based on the research of the predecessors,this paper finds that the invalidity of the main contract may also lead to damage to the debtor in judicial practice,and further sorts out the scope of liability of the fault guarantor by combining the nature of the guarantor’s fault and the consequences of the damage after the contract is invalid,and comprehensively considering the magnitude of the fault of all parties.Part Ⅳ examines the question of whether the guarantee period can still function after the contract is invalidated.On this issue,the author’s view is consistent with the provisions of Article 33 of the Interpretation of the Guarantee System,which holds that the validity of the guarantee period does not presuppose that the contract is valid,and the guarantee contract is invalid and the guarantee period remains valid.However,the existing norms do not provide for the calculation of the guarantee period in this case,and there is not much discussion of this issue in academia,and this issue is discussed in more detail in this article.