| As far as the effectiveness of the guarantee contract is concerned,Article 15 of my country’s "Guarantee Law" stipulates that the guarantee contract should have elements including the principal debt and the guarantee period.As far as counter-guarantee is concerned,my country’s "Guarantee Law","Property Law" and the upcoming "Civil Code" all provide the expression "counter-guarantee is subject to guarantee".According to the above provisions,a counter-guarantee contract should also have the elements specified in Article 15 of the "Guarantee Law".The effectiveness of a counter-guarantee contract lacking these elements is flawed and should be judged untenable.However,in practice,counter-guarantee contracts with a lack of elements are not always in place.Why is there such a difference between theory and practice? What are the shortcomings of our country’s counter-guarantee system? How should it be improved? This is the main issue discussed in this article.In the introductory part,first,by introducing a case handled by the author,this article leads to the issue of the validity of the counter-guarantee contract with missing elements.Then it expounds the research literature review and research method design,and introduces the conclusion of the author’s preliminary investigation in the court and the reasons for the case study.The first part of the text analyzes the legislative evolution and system blind spots of the counter-guarantee contract.First of all,through the exploration of the legislative evolution,this article sorts out the definition,form,appearance,and essence of the counter-guarantee contract from the normative documents of our country and outside the territory.Secondly,this article makes a detailed analysis of the cases introduced in the introduction,studies and judges the main controversy,and points out that the current counter-guarantee system is insufficient for the lack of elements.The second part of the body USES case analysis method to make an empirical study on the effectiveness of the counterguarantee contract with missing elements by obtaining cases on the Internet of judgment documents.When acquiring cases,this paper takes "counter-guarantee" as the key word,limits the case to "guarantee contract dispute",limits the trial court to the third-level court in Sichuan Province,and finally obtains 405 cases.When comparing the data with the preliminary research results,the author found that some courts made mistakes in marking the focus of disputes.In the 405 cases mentioned above,there were two kinds of interference: 1.2.The dispute over the guaranty contract is actually a dispute over the right of recourse,and both parties have no dispute over the counterguaranty contract itself.After cleaning out the interference data,the author selects,sorts out and classifies the cases that have substantial disputes on counter-guarantee collected.The author divides the case into "the case in which both parties have no objection to the missing elements of the contract" and "the case in which the defendant proposes the defense of the missing elements of the contract",which is further subdivided into "the defense of the absence of agreed elements" and "the defense of the absence of legal elements(including the absence of principal debt and the absence of guarantee period)".It also summarizes the gist of the case.Finally,the conclusion is drawn through empirical research: 1.The people’s court adopts the attitude of "no defense,no trial" to the problem of missing elements of the counter-guarantee guarantee contract;2.2.The success rate of raising defense on the absence of agreed elements is high;3.The court focuses on the substantive review of the missing legal elements.The third part of the text expounds the difference between the theory and practice of the counter-guarantee guarantee system and points out that the deficiency of the current counter-guarantee guarantee system is caused by the excessively lax provisions on the counter-guarantee system in the legislation.Since the Security Law,the Property Law and the civil Code which will come into effect only stipulate the stipulation of "counter-guarantee from guarantee",it can be seen that the way to perfect the counter-guarantee guarantee system from the perspective of legislation is not possible at present.Therefore,the author puts forward the following Suggestions to improve China’s counter-guarantee system from the perspective of judicature: the judge should be inclined to focus on the true meaning of the trial,the judicial authorities should speed up the formulation of judgment standards,and the theoretical research should stick to the guidance of protecting creditor’s rights. |
