On The Defense Rights Of Sponsors Of Bank Credit Business

The guarantee system has a long history.It plays an irreplaceable role in guaranteeing the realization of creditor's rights and promoting the development of social economy.With the continuous development and expansion of the financial industry,enterprises usually take the way of financing to expand the size of the market to enhance the competitiveness of the market.As a guarantee,the guarantee tool is developed into a mixed tool with the guarantee function of creditor's rights and the characteristics of financial products.The security law of China was made in the middle of the 90 s of last century.Because of the active capital market and the emergence of financial products,it is very difficult to meet the needs of the development of the society.Therefore,it is necessary to make corresponding institutional adjustment for today's financial market.In addition,the legislative purpose of the guarantee law is to put the interests of the creditor in the first place,and it is undeniable to protect the security of the creditor's rights,but from the view of the legal value orientation,the security law is more concerned about how to guarantee the realization of the creditor's right through the security transfer risk,while neglecting the decentralization of security risk as a guarantee of the creditor's right.The system design has increased the burden of the guarantor to a certain extent.For example,if the parties have not agreed to undertake the guarantee,they should be identified as joint and several liability guarantee.In addition,as the financial risk of the bank is relatively large,although the guarantor has the privilege from the property,the real guarantor does not understand the financial risk in reality,which causes the bank credit guarantor to bear the enormous pressure of guarantee and the serious imbalance between the rights and obligations of the people and the bank.In practice,banks always distribute credit risk to guarantee people,while the borrowers' debt paying ability will not be examined in depth.Not only that,the banks will also take advantage of their dominant position to deprive the rights of the guarantor,so that the right of defense in the weak position guarantor can not be effectively exercised.For example,banks will restrict the guarantor's right of defense by abusing the dominant position and demanding the standard terms,which is a serious violation of the principle of contractual justice.Based on the characteristics of the bank creditguarantee,this paper classifies the plea right of the guarantor in the bank credit business through the analysis of the legal relationship of the bank credit guarantee and combines the different legal application of the plea right of the guarantor in the judicial practice,and puts forward the construction of the plea right of the guarantor in the bank credit business.Discussion.Specifically,it includes four parts:The first part is the characteristics and legal relationship of bank credit guarantee.This part summarizes the characteristics of bank credit guarantee by combining the characteristics of the guarantee and the particularity of the bank credit field,and analyzes its legal relationship from the perspective of the subject and the rights and obligations.The second part is about the concept,characteristics,types and exercise of guarantor's right of defense.This part discusses the characteristics of the plea rights in the bank's credit field,and divides it into the following aspects: one is to rely on the right of defense of the loan contract;the two is to guarantee the right of defense of the contract;and the three is the right of special disclaimer.The third part is about the different standards and laws applicable to the exercise of guarantor's right of defense.Through the comparison and analysis of the judicial cases of the typical bank credit guarantee,this part summarizes the general rules of the application of the plea right of the guarantor and the influence of the orientation of the referee's value on the exercise of the plea's right of defense.The fourth part,In view of the legislative purpose of the present law of guarantee and the restriction on the plea right of the guarantor in the field of bank credit,the three aspects of the equilibrium theory of law,namely,the equilibrium of behavior law,the equilibrium of law and economics,the equilibrium of law and the law of value,have made a perfect opinion on the right of defense of the bank credit guarantor,and have achieved the realization of the bank,the borrower and the guarantee.The balance of witness' s rights and obligations can better realize the substantive justice of law.