| The reform and opening have go through three decades, prosperity and developmentof China’s market economy, China’s counter-guarantee business also will prosper. Butincompatible with the active practice of business is on the counter-guarantee of legalprovisions. Conduct of counter-guarantees provided by law, mostly enacted in1995,Guarantee Law and1996promulgated the Guarantee Law judicial interpretation. Theseprovisions have elapsed since the years of history, but also less concerned scholars in thisfield. So let the counter-guarantee either in theory or in practice, has emerged as abackward state.Counter-guarantee refers to the guarantee (counter-guarantee is set before theguarantee) provided by a third party other than the debtor, in order to safeguard the futureto achieve the guarantor’s right of recourse against the debtor, and the debtor or the debtorrequires a third person other than the guarantees provided to the guarantor. These scholarshave a basic understanding of some consensus. These are also the counter-guarantee to bedistinguished from the essence of the guarantee, then the characteristics of the guarantee.The system of counter-guarantee can produce and development is based on itseconomic value. Although it’s a good system, because of the current Chinese reasons,there has been a lot of questions in practice. Such as no clear way of guarantee, lack ofregulations of counter-guarantee on principal contract, the registration requirement isunreasonable, the period of responsibility is not clear, and lack of regulations and otherissues on unlimited right and defense re-established. As this shortage, we can remedy putforward to improve our counter-guarantee regime. We can pass legislation specificallyapplicable to counter-guarantee. Such as, define the way of counter-guarantee, that’s meancounter-guarantee is limited approach in guaranteed, pledge, mortgage, and can not beretained; clear the main contract of counter-guarantee is the secured creditor contractbetween the debtor and the guarantor, rather than the guarantee contract; clearcounter-guarantee is not unlimited re-established; increase defenses and counter-guarantorliability predetermined period. On the basis of increase the regulations incounter-guarantee, then improve the existing building security system and registrationrequirements, strengthen the credit system. In this case, you can play a full role inpromoting counter-guarantee on the economy, so that the counter-guarantee system intothe track of healthy development. |
