On The Distinguish Between Coexisting Debt Commitments And Guarantee

How to distinguish coexisting debt commitments and guarantee is always a difficult problem in judicial practice.Reviving the development process of coexisting debt commitments system in China before and after the promulgation of the Civil Code of the People’s Republic of China(hereinafter referred to as the Civil Code),there are some problems in each stage.Article 552 of the Civil Code establishes the system of coexisting debt commitments,and makes it clear that coexisting debt commitments and guarantee can coexist with each other,but it does not stipulate the identification of the two.Secondly,the similarity of the function,occurrence mode and legal effect of debt addition and guaranty makes it difficult to distinguish them.In judicial practice,the recognition of different nature based on the similarity between the two does not have substantial impact on the rights and obligations of the parties,thus avoiding the distinction between the two.Thirdly,there are differences in the legal nature of the third-party credit enhancement documents about the coexisting debt commitments or guarantee.How to distinguish the two is particularly prominent in the dispute cases involving the third-party credit enhancement documents,and it is a difficult point in judicial practice.Combined with the " The minutes of the meeting on civil and commercial adjudication of national courts " in article 91 and in the article 36 of Interpretation of the Supreme People’s Court on Some Issues Concerning the Application of the Security Law of the People’s Republic of China,the author summarizes the judicial organs in our country at present nature determination and analysis of the path to a third party credit files,the mainstream view in the judicial practice the identification of nature of third-party credit files can be divided into three types: guarantee,debt to join and separate contract relationship.In order to identify the addition and guarantee of debt,we should first follow the principle of text priority and examine the text of the contract in form.Secondly,according to the essential characteristics of guarantee and debt addition,the author explores the inner meaning of the parties concerned.Finally,if reasonable interpretation of meaning is still not obtained through the first two standards,it can be directly presumed to be a guarantee,that is,the presumption of doubt is a guarantee rule.If the accession is neither a guarantee nor a liability,it shall be determined in accordance with the rights and obligations of the acceptance document.But there are still some imperfections and ambiguities in this path.Based on the above three reasons,it is necessary to make further research on the identification of the two from the perspective of third-party credit enhancement documents.The second chapter mainly discusses the recognition and difference between the addition of debt and joint and several guaranty.From the constitutive requirements,the dependency and independence,to take on debt,to perform the sequence and the content of the legal effect differences of the two,were introduced from the aspects such as put forward the theory on the distinction between the two cases in the judicial recognition,limitations in the perspective of logical poor operability in practice,thus it is necessary to build a set of standards for the practice.At the same time,through the comparison with the guarantee system,it can be concluded that on the whole,the risk of the debtor is greater than the risk of the guarantee,and the fact that the determination of the nature of liability is bound to have a substantial impact on the rights of the parties concerned further indirectly proves the necessity of distinguishing the two.The third chapter of this paper summarizes the concept,common transaction structure background,common agreement text and typical cases of the three common credit enhancement measures,such as the third party shortfall replenishment,the performance of repurchase obligations due on behalf of the third party,and liquidity support.The fourth chapter is the core content of this article,on the basis of the previous chapters,this chapter emphatically from the Angle of a third party credit files added and guarantee debt identification standard for building,first of all,from the perspective of meaning explanation,for three respective characteristic of the third party credit and debt to join and guarantee the legal nature of the intention to build.Generally speaking,when the words such as " coexisting debt commitments ","co-existing debt undertaking","overlapping debt undertaking" and "joint settlement" are explicitly used in the credit enhancement documents,the context should be given priority and the nature of such words should be identified as coexisting debt commitments.The occasion of the word "guarantee" clearly agreed in the credit increase document cannot be simply and directly considered as a guarantee.We should pay attention to the possibility of multiple interpretations of "guarantee" in daily life.Secondly,from the perspective of economic interests,the content of debt and the order of performance,we can further explore the true meaning of the heart and distinguish the joining and guarantee of debt.The criterion of economic interest is not sufficient to distinguish between coexisting debt commitments and guarantee;In terms of the content of obligations performed,if the amount of obligations is less than or equal to the content of the original obligations,the accession and guarantee of obligations cannot be recognized,and if the amount of obligations is greater than the content of the original obligations,it is considered as the accession of obligations.The scope of performance includes interest,liquidated damages,compensation for damages and expenses for the realization of obligatory rights,etc.,which are generally considered as guarantees;In terms of the order of performance,when the premise of the third party’s performance is that the debtor is unable to perform the debt at maturity,there is an obvious master-subordinate order,which can distinguish the general guarantee from the accession of the debt,but it fails to distinguish the accession of the debt from the joint and several guarantee.The performance by the third party is not premised on the failure of the obligor to perform within the prescribed time limit,but directly indicates that the third party performs on behalf of the obligor or does not stipulate the period and conditions of performance,etc.,which tends to be considered as accession to the obligation.When the prerequisite for the performance of an obligation is agreed that the debtor fails to perform the obligation by the expiration date,it is impossible to distinguish whether the obligation is added or guaranteed.Finally,when it is impossible to determine or deduce the true intention of the parties through the interpretation rules of meaning,it is appropriate to deduce it as a guarantee.