Research On Guarantee Liability After Guarantor’s Death

Although the legal nature of the guarantee is a basic theoretical issue,there is still controversy on this issue in the academic and practical circles,which also causes the court to have the same judgment and different judgments when trying the case of guarantee responsibility after the death of the guarantor.Whether the guaranty liability after death should be borne by the heirs within the scope of inheritance?There are different judgments on this issue in judicial practice,and there is no consensus on this issue in academic circles.In judicial practice,there are three different opinions when the court adjudicates such disputes.One is that it does not support the successor to bear the responsibility,which holds that the guarantee is a credit guarantee and the credit of the dead is destroyed;the other is that according to the time node of the guarantor’s death,before the debtor fails to perform the debt,the guarantor only bears the guarantee obligation,and the content of the obligation is the possible debt burden,Also known as "contingent liability",the obligation of death is extinguished;when the debtor fails to perform the obligation,the obligation of guarantee is converted into the obligation of guarantee,when the obligation of guarantee is determined,the obligation shall be paid off by the successor;thirdly,the successor shall be supported to bear the liability,the opinion holds that the contract of guarantee is a property contract,in essence,the guarantee is guaranteed by unspecified property,and the obligation of guarantee shall be paid o ffby the successor.Among them,the judgment opinions which are distinguished according to the time nodes ofthe guarantor’s death occupy the majority in judicial practice.The opinion is correct in that "the content of the guarantee obligation is expressed as" contingent liability ",but the opinion on" the guarantee obligation is extinguished with the death of the guarantor "is not in line with the current legal provisions.In its development,guarantee contract can be divided into "contingent liability" stage and guarantee liability stage.When the guarantor dies in the guarantee liability stage,his successor shall bear the guarantee liability(guarantee liability)within the scope of inheritance.According to the theory of "generalizing inheritance" in the academic circle of our country and the legislation of foreign laws,when inheriting the heritage,the successor should also bear the obligation of the property of the decedent.Therefore,when the guarantor dies in the stage of contingent liability,the successor of the guarantor should bear the obligation of guarantee within the scope of inheritance.In addition to the introduction and conclusion,the article is divided into four parts.The first part mainly expounds the judicial chaos and academic disputes of the guarantor’s liability after his death.First of all,the article expounds three kinds of judgment opinions in practice.Secondly,this paper summarizes the different views on this issue.Finally,the article summarizes the theoretical focus of judicial chaos and academic disputes.The second part mainly discusses the basic theory of guarantee.First of all,the article expounds the subordination,complementarity and probability of guarantee.There are two different views on the complementarity of guarantee in the academic circle.The article holds that there is no fundamental difference between the two views.The first is the complementarity on the establishment of guarantee debt,and the second is the complementarity on the performance of guarantee debt.Secondly,although the guarantee contract and the conditional contract have the form of"conditional",the "conditional" in the guarantee contract is not the result of autonomy of will,but the necessary content of the guarantee contract stipulated by law.The guarantee contract does not conform to the legalprovisions of the conditional contract.In principle,the guarantee contract is a contract that comes into effect when it is established.Finally,the paper holds that although there are similar contingent debts between the suretyship contract and the Shexing contract,the suretyship contract is not the Shexing contract because the Shexing contract is a dual service contract and a paid contract,while the suretyship contract is a single service contract and a free contract.The third part analyzes the nature of the guarantee legal relationship.First of all,the article thinks that the guarantee is based on the property of the guarantor,not the credit guarantee.Secondly,the paper discusses the relationship between guarantee obligation and guarantee debt,and points out that guarantee obligation includes two stages:"probable debt" stage and guarantee debt stage.Finally,the article holds that the liability of suretyship is not the civil liability in strict sense,but the other name of suretyship debt.The fourth part makes a theoretical analysis of the existing judgment opinions and discusses whether the guarantee obligation in the stage of "contingent liability"can be borne by the heirs within the scope of heritage.First of all,the article believes that the existing three kinds of judgment opinions are not completely correct.Secondly,the article holds that the provisions of Article 33 of the inheritance law on paying off debts should be interpreted as "bearing the property obligations of the decedent",and the conclusion that the successor should be fully supported to bear the guarantee responsibility within the scope of inheritance is reached.