Research On The Distinction Between Debt Participation And Guarante

Cumulative assumption of debt and surety,both of which have the function of guaranteeing the realization of creditor’s rights,are widely used in various civil and commercial activities to improve creditor’s rights repayment opportunities.Due to their similarities in functions and systems,the natural ambiguity of the words,the differences in the parties’ legal professional knowledge,and the influence for the purpose of evading the law,it is difficult to distinguish between cumulative assumption of debt and surety in practice,which affects the rights and obligations of the parties.Therefore,it is necessary to discuss how to distinguish between cumulative assumption of debt and surety,and how to interpret relevant declarations of will clearly.The paper is divided into four parts.After raising questions,under the premise of clarifying the connections and differences between cumulative assumption of debt and surety,this paper studies the interpretation path and factors of the declarations of will of cumulative assumption of debt and surety.The first part mainly summarizes the existing problems based on the current judicial practice,and analyzes the causes of the problems.Under the big problem of the difficulty of distinguishing between cumulative assumption of debt and surety,based on practical cases,it is found that the paths of distinguishing cumulative assumption of debt and surety in practice are not consistent,and there are problems such as standards overlapping,standards identifying ineffectively,and different standards leading to different judgments in the same cases.It is concluded that there are problems such as the identification path of cumulative assumption of debt and surety unclear,the standards unsystematic,and the judgment standards inconsistent.And then the following paper studies the causes for the above problems,including the overlapping of applicable fields caused by the similarity of their functions and systems,and the ambiguity of words and sentences.The second part analyzes the differences between the two systems from the three aspects of legal nature,constitutive elements and legal effects.In terms of legal nature,compared with cumulative assumption of debt,surety is accessory and supplementary.In terms of the constitutive elements,there are differences in the scope of the receiver of the declaration of will and transferability.At the same time,there are differences in the right of defense enjoyed by the third party,the right of recovery,and the restrictions on the exercise period of rights,etc.This also shows the necessity of identification between cumulative assumption of debt and surety.The third part mainly studies the paths and methods that need to be followed when interpreting the declaration of will of cumulative assumption of debt and surety.First of all,discuss the application of Article 142 of the Civil Code from the aspects of the applicable object,the validity of the declaration of will,and the interpretation method,so as to clarify the basis and path of interpretation of the declarations of will.Secondly,the method of legal relationship is introduced to be applicable to build substantive standards for identification between cumulative assumption of debt and surety.When building the substantive standards,it should follow the legal relationship method,starting from the concept,legal nature,and constitutive element,and analyze the identification effectiveness and application of each factor to form systematic identification standards.The fourth part focuses on building an identification system to distinguish cumulative assumption of debt and surety.At first,based on Article 142 of the Civil Code and guided by the legal relationship method,a system of interpretation of the declarations of will of cumulative assumption of debt and surety is constructed.The semantic interpretation should be given priority to examine the party’s declaration of will.In the case where the semantic interpretation can’t work or is obviously unreasonable,other interpretation methods shall be applied.And based on the nature of the law,we should judge whether has the order of performance or whether exists the condition of the debtor without performance.Based on the constitutive elements,we should judge the difference of recipients and whether the debt is transferable.At the same time,it is a supplementary factor that whether it has direct and actual benefits.Secondly,in the case where the interpretation of the declarations of will is not possible,the rule of presumption shall be applied.This paper focuses on its applicable premise,applicable circumstances,and result.