Research On The Effect Of Guaranty Contract Damage Clause

With the rapid development of market-oriented economic activities,the“contract” system,which is an important driving factor for the market economy,is increasingly diversified.Among them,there are more and more parties that negotiate contractual clauses with distinctive contents through the autonomy of meaning.phenomenon.However,whether the contents of the contractual terms agreed upon by the parties are legal and effective and enforceable,it is necessary to comply with the mandatory provisions of the law and the basic principles of civil activities.In recent years,a new situation has emerged in the trial of guaranteeing contract disputes: “The two parties to the contract stipulate otherwise in the contract of guarantee that the guarantor breached the contract” : Some of the parties to the guarantee contract agreed in the guarantee agreement that when the main debtor fails to perform the obligation,the guarantor must bear the liability for breach of contract in accordance with certain standards(such as 8% of the amount of the debt)in addition to undertaking the obligation of guarantee.How to determine the effectiveness of such agreements will have what kind of legal consequences.There are two completely different opinions in China’s current judicial trial: One view is that the guarantor’s responsibility is a kind of compensatory responsibility.It is the responsibility of the debtor originally.The ultimate bearer of the responsibility should be the debtor.If the contractual guarantor assumes responsibility for breach of contract in addition to the guarantee liability,the guarantor’s ultimate responsibilitywill be greater than that of the debtor;if the liability for breach of contract cannot be recovered from the debtor,it will undoubtedly result in rights and responsibilities between the three stakeholders.Unbalanced,does not meet the requirements of the principle of fairness.Another view is that a guarantee contract is also a kind of contract,and as long as the principal debtor and the guarantor make such an agreement under free will and does not violate the prohibitive provisions of the law,they can support it.Article 21 of the "Guarantee Law" also stipulates that: "...guaranty is otherwise agreed in the contract,in accordance with the agreement." In accordance with this provision,if the contractual damages clause in the contract is guaranteed,if both parties to the contract actually negotiate in free will.The choices should be regarded as "additional stipulations" to support the claims of the creditors.In summary,it is not difficult for us to see that two different viewpoints are based on different perspectives to justify oneself.One has not thoroughly demonstrated its own point of view.Second,it has failed to point out the irrationality of opposing opinions.It is hard to convince people that it is reasonable to say that the husband is reasonable.However,the settlement of this issue will directly affect the immediate interests of the tripartite participants in the guarantee relationship;in addition,as a result of guaranteeing the contractual nature of the guarantee,if the discussion results of the above issues are extended to other guarantee contracts,the impact will be even greater.For the wide and far-reaching.