A Study On The Invalid Situation Between Guarantees And Guarantees In German Credit

As the legal Matrimonial property regime in Germany, during the course of marriage, both husband and wife hold their own property independently. With the development of personal credit business, to prevent property transfer maliciously and protect the economic right of themselves, a lot of banks require the creditor’s spouse to sign pledge for the spouse with the banks. The pledge for the spouse has been the preferential way of pledge for personal credit business. However, in the true life, the pledge for the spouse caused heavy economic burden is always over the ability of repay result in threatening the basic life of the guarantor and the family once the banks require the guarantor to meet their responsibility of guarantee.The judicial practice in Germany has generally formed the cases that the pledge for spouse is invalid while the pledge violated public orders and morals. After the discussion and debate between the academia and judiciary, the cases constructed the judiciary frame in the practice that once the guarantor who is close with the debtor burdened debt that far away from the payment ability and the guarantor does not earn personal economic interest from the pledge, the guarantee can be deemed as violation of public orders and morals and result in invalid.Personal credit business is flourish in China recently caused the surging of pledge for spouse as well as legal issues. The most essential issue is the effectiveness of the contract of pledge for spouse. Once the responsibility of pledge is over the ability of payment, the heavy economic burden would made the guarantor live under the lowest living standards of the line in the whole life. For the guarantees in a disadvantaged position burdened pledge obviously over the ability of personal economic is violation of public orders and morals, the pledge contract could be deemed as exceptions of contract autonomy. Thus, as the author, I would advise to draw lessons from the judiciary practice of Germany and base on the regime of instructions of cases in China to form a regime of invalid of pledge for spouse result from violation of public orders and morals and typed the cases.The thesis will start from the general definition of good morals of Burgerliches Gesetzbuch to discuss the regime of invalid pledge for spouse for violation of public orders and morals. Horizontal analysis on the beginning of pledge for spouse and the interest imbalance result from invalid pledge for spouse. Longitudinal analysis on the historical background of cases formed the invalid pledge for spouse. Finally, the judge standard of the above mentioned cases should be used in the judicial practice. Based on the study on the invalid of pledge for spouse in Germany and implication of the public orders and morals in the judiciary practice and the identification of invalid contract of China to discuss the feasibility of typed cases of invalid pledge contract for violation of public orders and morals with final rules.