Study Of Counter-guarantee System

Guarantee System is the important support of Creditor’s Rights Protection System and play an important role in the implementation of the protection claims. But at the same time, the set of guarantee puts the guarantor’s right of recourse against the debtor at risk. In order to protect the legitimate interests of the sponsor, counter-guarantee is used to guarantee the guarantor’s right of recourse against the debtor. As a special form of guarantee, counter-guarantee is not only based on the general characteristics of guarantee, but also has its own legal characteristics. The counter guarantee and guarantee are fundamentally different in both the principal terms and warranties. The counter-guarantee has the value of security, justice, order, efficiency, and legality, in which security is the most fundamental value. As an important means of guarantee, counter-guarantee has a history of application for more than200years, and counter-guarantee give full play to its function of protecting the implementation of creditor’s rights during this process. Throughout the legislation of all countries in the world, few countries specify the counter-guarantee except China, Switzerland and Ethiopia. The security law and its judicial interpretation, and the property law have been made to counter-guarantee. On the basis of existing legislation, three propositional version drafts for civil code have suggested some recommendatory provisions, and put forward innovative proposals to some extent.According to the Guarantee Law, insurance, mortgage, pledge, deposit, and lien are the means of guarantee. As a special form of guarantee, scholars disagree on whether counter-guarantee can apply the five basic forms of guarantee. Combined with the counter guarantee specific application, this article believes that guarantee, mortgage and pledge could be applied to counter-guarantee, while deposit and lien could not be applied to counter-guarantee on the basis of relevant theoretical research. Although the counter guarantee is a kind of guarantee, counter-guarantee contract is independent of the guarantee contract, and its effectiveness, change, and the eradication has no relation with the guarantee contract Combined with the legal characteristics of counter-guarantee, this article details the effectiveness of the counter-guarantee contract, the elements of counter-guarantor’s responsibility, and Counter-guarantor’s right of defense.The imperfections of the counter-guarantee system hampered its value in the complex trading practices with the development of market economy. Counter-guarantee system inherits the inherent vice of guarantee system, and is not perfectly designed. Negative results appear in the application process and counter-guarantor’s right of recourse is difficult to achieve. So there is a massive gap between the actual value of the counter guarantee and the necessary value of the counter guarantee. In order to reducing the barriers of the application of the counter guarantee, promoting the good settlement of debt dispute, this article make specific recommendations and norms to the improvement of the counter guarantee system through the following means. In order to reducing the barriers of the application of counter-guarantee and promoting the good settlement of debt dispute, this article make specific recommendations and norms to the improvement of counter-guarantee system by means of perfecting legislation, judicial trial and the construction of related systems. As well as the problems and obstacles of counter-guarantee system, specific recommendations to improve it are the body content of this article.