Research On Guarantor’s Liability When The Principal Obligation Contract Is Void

Warranty plays an important role in any legal systems.Based on the subordinative nature of warranty and its judicial practices,unless stipulated by law,when the main contract was invalid,the guarantee contract lost its validity accordingly.As for whether and how the guarantor should bear the responsibility when the guarantee contract is invalid due to the reason afore mentioned,Article 8 of Judicial Interpretation of the Supreme People’s Court on Some Issues Regarding the Application of the Guarantee Law of the People’s Republic of China tried to give an answer,which has mostly been inherited by Article 17(2)of Interpretation of the Supreme People’s Court of the Application of the Relevant Guarantee System of the Civil Code of the People’s Republic of China.Although this issue has been discussed repeatedly among academia and practice,many questions are left unsolved.In addition to the introduction and conclusion,this paper was divided into five chapters.The introduction part involves the motivation,value and research methods of this paper.The first chapter discussed the background of the issue,which is the guarantor’s liability when the principal contract is invalid.This part firstly combed the common reasons caused the invalidity of the main contract,and then points out that unless stipulated by law,when the main is invalid,and the guarantee contract is invalid.In addition to invalidity,any flaws of the main contract as not established or being revoked,should also be dealt with a the same norms.As for the nature of the guarantor’s liability,it is generally believed that it should be categorized as fault of contracting,or tort.In the author view,with the perspective of system and nature of warranty,it is better to define the liability of the guarantor as the fault in contracting as the third party to the main debt.The second chapter discussed the primary elements of the guarantor’s liability.The evolution of this issue in positive law are three stages: unconditional joint and several liability;Conditional joint and several liability;the limited liability for fault.The whole process has experienced the transformation from "liability in principle" to "no liability in principle".The positive elements of the guarantor’s liability may include breach of pre contract obligation,damage,occurrence of "insolvency" and causality,while the negative elements should be that the guarantee period has not yet expired.The third chapter discussed those questions related to guarantor’s "fault".This part focuses on the influences from the theoretical and judicial practice on the understanding of the fault and the liability of the guarantor,and tried to classify the judgment standard and main types of the fault of the guarantor.As for the range of guarantor’s fault,it should refer specifically to the fault of the guarantor’s facilitating in concluding the invalid main contract.In judicial practice,there is confusion in identify between the guarantor’s fault and the guarantor’s liability.For the lack of universal standards,unclear distribution of the burden of proof for fault,and few judges pay attention to causality more than 80% cases showed that the guarantor is judged to be responsible for one third of the debtor’s insolvent part.In author’s opinion,the judgment of fault should be based on the role of the guarantor in the process of signing the main contract,the signing time and content of the guarantee contract.The issue of classifying the guarantor’s fault is still worthy for further study.The fourth chapter discussed the scope of damage and compensation among guarantor’s fault.The guarantor is responsible for his own fault,which is limited to1/3 of the debtor’s unpaid part is not convincing.A line should be drew between the damage from the invalid main contract or from the invalid guarantee.The former should be limited by 1/3 of the upper limit,while the latter should be dealt with in accordance with the norms of liability for fault in concluding a contract,not limited by 1 / 3 of the upper limit.Because of the complexity of damage calculation,it is easy to operate,but it may be too rigid a norm.Chapter five discussed the issue of recovery.The guarantor has the right to recover from the debtor and has the right of subrogation within the scope of liability.The conclusion part made a brief summary of the problems discussed in this paper.