| The issue of "whether the act of providing guarantee after the debtor can be revoked by other creditors" is one of the systems of the right of revocation.However,the objective nature of the act of providing guarantee after the event and the determination of the system of the right of revocation should not be paid attention to.Although Article 31 of the enterprise bankruptcy law and Article 69 of the judicial interpretation of the guarantee law have regulated the issue of "cancellation of post guarantee" in and out of the bankruptcy proceedings,the legislative position and technology of the latter are not yet well considered,and the construction of the system of the right of cancellation is more effective,which has fallen into the fog of fuzzy location and unclear logic,and the gap between the right of cancellation of creditors and the right of partial cancellation of bankruptcy Medium.There is no detailed theory about the components of the right of rescission of security after the event,let alone the value balance of the system and the design of the proviso.Therefore,the author intends to measure the correct legislative coordinate system of the right of rescission of security after the event,and correct its theoretical support and institutional framework.In addition to the introduction and conclusion,the paper is divided into four chapters:The first chapter:"definition of objective nature of post Guarantee Act".The act of guarantee after the event is not a gratuitous act to reduce the debtor’s liability property,nor is it possible to observe the deceitful nature of the act from the reduction of "joint guarantee",nor to judge the nature of the act from the "obligation" of the act.The act of guarantee after the story is not a deceitful act adjusted by the creditor’s cancellation right.It can be seen from the purpose and effect of its behavior that it is essentially the same as the individual liquidation behavior and should be the same biased behavior.Chapter two:"the legislative position of the right to rescind security after the event".The right of cancellation of creditor’s rights aims to protect the debtor’s "fair transaction",while the partial right of cancellation is used to protect the creditor’s "fair compensation".As a kind of biased behavior,if the post guarantee behavior appears outside the bankruptcy procedure,the bankruptcy biased cancellation right cannot be applied,and the behavior is not adjusted by the creditor’s cancellation right.Therefore,Article 69 of the judicial interpretation of the guarantee law falls into the gap of unclear positioning,which raises the question of how to regulate the biased behavior outside the enterprise bankruptcy law In view of the absence of personal bankruptcy law,we can "expand the adjustment scope of the creditor’s right to revoke,expand the participation in the distribution system,endow the creditor with biased right to revoke,and set up biased right to revoke in personal bankruptcy"in turn.Chapter three:"the constitutive requirements of the right to rescind security after the event"."After the event" is not just a mechanical concept of time,but also includes the consideration of the agreement of guarantee when the parties sign the main contract.At the time of judgment,the publicity of the real right of guarantee should be regarded as the behavioral node of "after the event" judgment,and the subjective elements should also be determined by "the rebuttable presumption of fact",The basis of fact presumption lies in "the high possibility of fact occurrence".According to the possibility,the scale of presumption should be moderately relaxed or tightened;when examining the objective elements,the legislative expression of "affecting the realization of creditor’s rights" should be unified.Chapter four:"exceptions to the right to rescind security after the event".On the one hand,it should take "the debtor’s property is not reduced" as the general rule of exception,on the other hand,it should expand the exception by specific types,in which the consideration of protecting the transaction security can be added to maintain the balance of interests of all parties.In particular,the exceptions to cancellation are"legal obligation post event guarantee","return of subsequent consideration" and "small amount post event guarantee". |
