The Litigation Form And Justice Practice Of General Liability For Guarantee

The promulgation of the Civil Code re-establishes the principle of general guarantee liability in guaranty contracts,which greatly reflects the protection and respect for the rights of the guarantor.The institutional norms of general guarantee liability are also reflected in the Civil Code and the Interpretation of Civil Procedure Law.According to the current situation of institutional norms and judicial practice,the form of general guarantee liability lawsuit can be summarized as a single lawsuit against the general guarantor or debtor and a joint lawsuit against the general guarantor and debtor.However,the judicial interpretation of the litigation form has not been clear,so it is difficult to provide accurate and clear guidance for judicial practice.The current judicial interpretation of the provisions made when only the general guarantor is sued,no matter which way and the provisions of the Civil Procedure Law on joint litigation can not fully fit.Therefore,the provisions of the current judicial interpretation do exist worth further consideration.Need on the basis of the theory of common litigation system,dispute one-time settlement and civil rights protection,namely under the traditional litigation target theory,analyze the number of litigation liability litigation,with the main creditor’s rights debt and guarantee debt closely related to explain litigation target "type",thus by explaining to apply ordinary common litigation form.Combined with the analysis of the subject matter of litigation,starting from the supplement of the general guarantee liability,it gives the rationality of the same facts together,and adds the debtor through the judge performing the interpretation obligation,so as to form the litigation type of common joint litigation.By combining with the actual cases in judicial practice,this paper further analyzes the current system of our country,so as to explain the current contradictions and confusion.The main text is divided into four parts:The first part is about the classification status and existing problems of the litigation form of general warranty liability.Firstly,the paper discusses the classification status of general guarantee liability litigation forms.It analyzes and compares the two aspects of legislation and judicial practice,it summarizes the common points of legal provisions,and focuses on the differences.The real cases on the public document website were searched and sorted out into different situations,and the specific performance of the disputes of general guarantee contracts in judicial practice is summarized.Secondly,find out the problems existing in the current legislation and practice,clarify that the focus of the dispute focuses on the specific treatment when the general guarantor is sued alone and the determination of the litigation form when the debtor and the general guarantor are sued together,and explain the problems in three different types.The second part is about the differences of views on the litigation form of general warranty liability,which combs the differences of views under the two different situations of single litigation and joint litigation,so as to further find the dispute focus in the theoretical dispute.The third part is about the qualitative analysis of the litigation form of general warranty liability.It mainly focuses on the relevant factors affecting the determination of the litigation form of general warranty liability,analyzes the causes of the problems,and obtains the qualitative analysis of the litigation form of general warranty liability.Firstly,it combs the influencing factors such as the theory of litigation object,the right of defense,the general guarantee responsibility,the coordination and cooperation between substantive law and procedural law.Secondly,it criticizes and refutes the view that the existence constitutes a necessary joint litigation.Finally,it summarizes and analyzes the litigation form of general guarantee liability.The fourth part is a practical guide to the litigation form of general warranty liability.On the basis of the above analysis and demonstration,combined with practical cases,to put forward some analysis and discussion to adhere to the principles to help better deal with and solve the current provisions and norms and the current judicial practice,pay attention to the emphasis of litigation thinking and adhere to the relevant principles.Through the implementation of these detailed principles,help to achieve the unification of the litigation form,so then retards conflicts occurring,maintain the authority and credibility of the judiciary authorities,so that it will be properly applied,and create a good atmosphere of law.