Study On Liquidated Damages Clause In Guarantee Contract

In recent years,the phenomenon of "ensuring that the guarantor in the contract agrees to bear the default payment to creditors separately for its own breach" has appeared in practice.For a long time,there is a lack of general consensus in judicial practice to ensure the validity of the breach of contract clause,but with the continuous progress of case judgment,the judgment has gradually become more clear.By combing the judgment point of view of such cases,this study can obtain the current situation of judicial decision in such cases,analyze and evaluate the problems in the judgment,and then carry out in-depth thinking on the basic theory,so as to reach conclusions and make suggestions on judicial decisions.Nowadays,on the issue of guarantee contract for the breach of contract clause agreed separately by the guarantor,there is still a dispute of validity determination in judicial practice,based on a large number of case retrieval and research in the previous period,and it summarizes the four kinds of views held by the judicial decision of the class case,respectively:"The negative statement of clause validity","claim negation","conditional positive clause effect said"."And "the validity of the clause must be said".These four theories fully reflect the different points of view of judicial decision to guarantee the validity of the breach of contract clause,respectively,based on different considerations and argumental reasons,there is a certain contradiction and irreconcilability,reflecting the guarantee of the effectiveness of breach of contract in today's judicial practice,but also reflects the serious" The phenomenon of different judgments of cases,which needs to be paid great attention to by academic research,calls on the academic circles to take up the research responsibility of such problems.To explore the nature and effectiveness of guaranteeing breach of contract,the problem of the basic theory level is still to be traced back to,this study intends to apply to three basic problems through the analysis of the judicial judgment sample,through the phenomenon of direct attack on the nature of the problem,namely,"guarantee the contract from the limits of attributes","the nature of the guarantor's right to recover" and "the To guarantee the functional value of the breach of contract payment".First,secure the contract from the attribute issue.In judicial practice,many judges have determined the validity of the breach clause in the guarantee contract according to the principle of attribute,and hold that the scope and intensity of the guarantee liability can not exceed the scope and intensity of the main debt,and if the liability borne by the guarantor exceeds the scope of the main debt,it is a violation of the subordinate attribute of the guarantee contract.It is worth noting,however,that Article 5,paragraph 1,of the Security Act cannot be a legal vehicle for the principle of attribute of the security contract,nor can it be a mandatory provision nor a negation of the validity of the clause,and therefore neither the subordinate attribute of the security contract nor article 5 of the Security Law can be the legal basis for proving the invalidity of the breach clause.Secondly,the nature of the guarantor's right to recovery is a question.In the 11 cases listed above,seven expressly concluded that the breach of contract,which the guarantor's independent liability,could not be recovered or compensated from the debtor,would result in an imbalance in his rights and responsibilities,and concluded that the breach of contract agreement was inconsistent with the principle of fairness in civil law,In turn,the amount of the default payment will not be supported or reduced.It is worth noting,however,that from the point of view of legal relations,measuring the balance of rights and obligations should be balanced within the same legal relationship,and that the guarantor's compensation to the debtor for the breach of contract for which it is committed in the guarantee contract is based on another legal relationship,that is,the entrustment guarantee contract,and that the legal relationship between the two is not consistent,This should not have been used as a basis for measuring whether the case violated the principle of equity;Therefore,it is not justified to prove that the breach of contract clause violates the principle of fairness on the ground that"the guarantor cannot obtain recovery from the guarantor".Third,to ensure the functional value of the breach of contract.The judicial decision in the class case shall be based on Article 114 of the Contract Law,and shall be considered after supporting and adjusting the amount of breach of contract of the main contract.It should be noted that in the absence of security of the claim,the request of the guarantor to assume the debt is the last line of defense for the creditor to realize the creditor's claim,the guarantor bears the default payment has its independent value,therefore,the main subject from the contract default clause of the undertaking subject is different,different functions,it is based on the principle of freedom of contract and autonomy,only requires the guarantor There is no basis for "choosing to bear" and the liability corresponding to the amount of the default after a discretionary payment shall also be distributed in proportion to the principal default payment.To sum up,this study intends to provide a new solution angle for new problems,through further thinking on basic issues,for the theoretical and practical circles to provide a broader perspective on problem solving.