On The Understanding And Application Of The Guarantee Period

Although the civil code and its supporting interpretation and other legal documents improve the relevant rules of the guarantee period,they are still not clear enough,and there are still disputes in the specific application process.The term of guarantee does not affect the validity of the guaranteed relationship.Therefore,it does not affect the validity of the guaranteed relationship.The determination of the period should be based on the principle of "if there is an agreement,follow the agreement,and if there is no agreement or the agreement is unclear,follow the law".For the text of the agreed period,we should follow the requirements of the interpretation rules and explore the true meaning between the parties.If we can’t get the specific term or true meaning from the interpretation of the text of the agreed period,it should be recognized as unclear.The purpose of the period is to balance the rights and obligations of both parties,that is,to ensure that the creditor can exercise its rights from the perspective of time and reduce the risk borne by the guarantor due to bearing unilateral and unpaid obligations.In principle,the length of the period should respect the party’s autonomy of will.However,if the agreed period is too short to make it impossible or difficult for the oblige to exercise his rights,the agreement shall be invalid,which is regarded as "not agreed".On the contrary,if the agreed period is too long,based on the consideration that the guarantor should not bear heavier responsibilities than the main debtor,the maximum period should not exceed the limitation of action of the main debt,and the excess part should be deemed invalid.The starting point of the guarantee period is the time point used to judge when the guaranteed can start to claim the guaranteed responsibility from the guarantor.Based on the consideration that the guarantor should not bear the responsibility earlier than the main debtor,if the agreed starting point is earlier than the expiration of the main debt performance period,it shall be regarded as the starting point when the independent debt performance period expires.However,under special circumstances such as the debtor’s expected default and the debtor’s bankruptcy,the starting point shall be adjusted due to the early occurrence of the cause of "the debtor’s failure to perform its debts".If the debtor is expected to default,the starting point shall be the date when the creditor knows the debtor’s expected default,and if the debtor is bankrupt,the starting point shall be the date when the creditor knows or should know the court’s acceptance of the debtor’s bankruptcy case.According to the contingent nature of the guarantee period,the effectiveness of the guaranteed contract only means that the creditor’s right to receive is generated,but the right to claim payment is not generated.If the creditor determines the liability of the guarantor according to law during the guarantee period,the guaranteed debt can be produced,and the creditor can obtain the claim right of the guaranteed debt immediately.At the same time,the claim of guaranteed debt should be subject to the limitation of action.In the guarantee of joint and several liability,the limitation of action shall be calculated from the date of the claim of guaranteed debt;In the general guarantee,the limitation of action shall be calculated from the date when the right of the guarantor to refuse to bear the guaranteed responsibility is extinguished.