On The Application By Reference Of Guarantee Rules To Debt Accession

Debt accession,as a credit-enhancing measure widely used in practice,was not officially regulated in the current legislation until the Civil Code was introduced.However,the Civil Code only made general provisions on debt accession,leaving a significant gap in the specific legal effects of debt accession and inadequate institutional supply.The research on debt accession in the theoretical field has long been lacking,mainly focusing on the distinction and identification between debt accession and guarantee rather than the specific legal effects of debt accession.This inability to fill the insufficient institutional supply of debt accession through theoretical research has directly led to confusion in the application of rules on debt accession in judicial practice,with inconsistent judicial approaches on various issues.These problems have collectively brought about the practical demand for the reference application of guarantee rules to debt accession.Although the institutional supply of debt accession is insufficient to address the disputes arising from it in practice,the legislative technique of reference application adopted by the Civil Code,similar to that for unnamed contracts,provides a path to address this issue.Through analysis and comparison of various institutional functions,exempted debt assumption and third-party performance cannot be the objects of reference application for debt accession.However,the Civil Code creatively introduced the functionalist guarantee view in the guarantee system,which allows credit-enhancing measures to be incorporated into the guarantee system,unifying the institutional functions of debt accession and guarantee.In addition,debt accession and joint and several guarantee also have similarities in terms of responsibility form.Therefore,guarantee rules are the best reference objects for debt accession,and the multiple rules established for guarantees in legislation can be reference-applied to debt accession.Regarding the formal rules established by legislation for guarantees,based on the equal legal status of debtors and guarantors in debt accession,they should receive at least the same level of protection.In addition,the current legislation also prohibits certain entities from becoming guarantors,and the legal effects of signing a guarantee contract by such entities would be contrary to their functions.Therefore,such entities cannot engage in debt accession behavior.The procedural limitations on companies’ external guarantees are also applicable to debt accession,given that debt accession also plays a credit-enhancing role.Based on the attributes of dependence,singularity,and extinguishment shared by debt accession and guarantees,the rules of debtor opposition to the creditor and opposition to debt changes enjoyed by guarantors are also suitable reference rules for debt accession.Although debt accession can be referred to and applied with reference to guarantee rules in various aspects to compensate for the inadequacy of the system supply,such reference is not boundless.The widespread application of debt accession in practice also demonstrates its uniqueness.To avoid the loss of the uniqueness of the system of debt accession,the limits of reference application should also be noted.If some rules are derived from special attributes that guarantee contract possesses but debt accession does not,then debt accession should not refer to such rules,such as the rule of prior lawsuit defense,the rule of guarantee period,and the rule of exemption from liability when the creditor abandons the property provided by the debtor for guarantee.Or when existing legislation contains other rules that can be directly applied to debt accession,there is no need to achieve specific legal effects through reference application,such as the rule of subrogation and the rule of exemption from liability of guarantor upon debt transfer.By clarifying the types of rules that should not be referred to and dividing the limits of referring to guarantee rules for debt accession,guidance for debt accession in practice can be provided to the maximum extent while ensuring that debt accession can exert its own institutional value.