On The Application Of Law In The Period Of Guarantee

Guarantee period is a special period system of guarantee debt.The civil code adopts the doctrine of compulsory application to the guarantee period,that is,all guarantee debts should apply to the guarantee period.There are some problems in the application of law in the guarantee period system in China.First,the controversy on the concept of guarantee period,the determination of the scope of application of the warranty period and the determination of the nature of the warranty period are the first.The concept of new guarantee period in civil code has been confirmed on the legislative level,which can be regarded as a response to the long-term debate in the theoretical circle.It is reasonable that there is still applicable space in the period of guarantee when the contract is invalid.The nature of the guarantee period has a great controversy in academic theory,and many theories come in a lot of times.Since the civil code has not clearly defined the nature of the guarantee period,the discussion on the nature of the period of guarantee will continue in theory,but in practice,the court mostly adopts the period of exclusion.Why should we study and discuss the validity of the guarantee period,because the determination of the validity of the guarantee period is related to the determination of the nature of the guarantee period.The "guarantor no longer bears the guarantee responsibility" can be interpreted as the elimination of the guarantee liability in the entity.When the period of guarantee is meaningless,the legal period of guarantee shall be applied in accordance with the provisions of the civil code.In terms of the length of the agreed guarantee period,the civil code does not make too many restrictions,but it is worth noting that the length of short-term guarantee is necessary to limit,not too short,and should conform to the principles of good faith and credit,fairness,public order and good customs,that is,the creditor can also exercise his rights and realize his own rights in the short-term guarantee period.Because the guarantee period is not the limitation period of litigation in nature,it is not necessary to comply with the law.The parties may freely agree on the length of the period according to their intention.The long-term period of guarantee agreed shall be recognized in law.In terms of the indefinite period of guarantee,according to the provisions of the civil code,the legal guarantee period shall be applied.The interruption rule and the mainstream view in practice is not applicable in the period of guarantee stipulated in the civil code.In respect of the starting time calculated during the agreed guarantee period,special attention should be paid to that it should not start before the expiry of the main debt performance period,but it may begin after the expiry of the main debt performance period.The general rules of the guarantee period are relatively simple,but some special cases are not clearly stipulated in law,and often appear in judicial practice,which is worth discussing.As for the relationship between the guarantee period and the limitation period of the guarantee debt litigation,the "cohesion theory" stipulated in the civil code should be adopted,that is,the relationship between the guarantee period and the limitation of the debt litigation should be connected with each other,and it can play its due role and do the same.Moreover,the mainstream views in practice correspond with the opinions of the civil code.More importantly,the civil code clearly combs the difference between the guarantee period and the limitation of the debt litigation.It is worth noting that there are some defects in the provisions of article 694,paragraphs 1and 2 of the civil code,which need to be amended and perfected in the future through judicial interpretation.