On The Recognition Of Debt Accession And Guarantee

Debt accession,as an innovative "credit enhancement measure",has been legalized by the new Article 552 of the Civil Code.On the one hand,it clarifies the constitutive elements of debt accession and the legal effect of joint and several liability of the debt accession party and the original debtor,which makes up for the deficiencies of the Contract Law,and on the other hand,it also clarifies the relationship between the co-existing debt assumption and the exempt debt assumption,which is different from Article 551(1)of the Civil Code(Article 84 of the Contract Law),so that the relevant academic debate in the period of the Contract Law is no longer.However,in view of the natural similarity between debt accession and guarantee in terms of subject and object appearance and guarantee function,coupled with the frequent ambiguity of the third party’s intention due to objective and subjective reasons and the uncertainty of the identification standards of judicial decisions,the phenomenon of different judgments and different interpretations of the same law in judicial practice is frequent,and the path of the court’s reasoning is not very clear.However,the new Article 552 of the Civil Code is difficult to provide specific and effective guidelines for the identification of debt accession and guarantee,and the above identification difficulties faced in judicial practice need to be solved.In the context of the existence of the normative content of debt accession from scratch,the systematic separation of the provisions of guarantee in articles 681 to 702 of the Civil Code,and the provisions of the Interpretation of the Guarantee System on the identification of debt accession and guarantee that need further differentiation,it is necessary to identify the legal attributes,debt content,and the constitutive elements of the two from the doctrine.Specifically,firstly,the guarantee debt is subordinate to the main debt and is subject to the premise that the main debtor does not perform the debt at the end of the term,and the general guarantee is complementary in terms of performance;the debt accession is independent of the original debt and has relative independence,i.e.,it is only subordinate in terms of establishment,but not subordinate in terms of survival and development,and in principle,it is not subject to the premise that the original debtor does not perform the debt at the end of the term,and it is homogeneity in terms of performance.Secondly,the future debt can be established as a debt accession,but the debt accession contract is subject to the condition of cessation and is not yet effective.In contrast,the maximum guarantee contract is unconditional and takes effect as soon as it is established.The interest,liquidated damages,damages,and expenses for realizing the claim arising from the delayed performance of the principal debtor are within the scope of the debt to be guaranteed by the guarantor,but not within the scope of the debt to be assumed by the debt accession party.The agreed amount of the guaranteed debt cannot exceed the main debt,and the ratio of interest and liquidated damages cannot be higher than that agreed in the main debt contract,while the amount of the debt accession can be less than,equal to or greater than the original debt.Thirdly,from the legal relationship subject,the debtor and the guarantor can not form a legal relationship,but the debtor and the debt accession party can form a legal relationship of debt accession.From the viewpoint of the legal relationship,the guarantor has the legal right to recover based on the subordination of the guaranteed debt,while the debt accession party has no right to recover because the he is performing his own debt.The guarantor can claim the defenses of the debtor and based on the invalidity and revocability of the guarantee contract against the creditor.The debt accession party can assert the defenses of the original debtor against the creditor under certain conditions,and can assert his defenses against the creditor when he enters into a contract with the debtor,but may not assert his defenses of concurrent performance against the debtor.In the case where the debtor has the right of set-off,the guarantor has the right to reject performance but the debt accession party does not.In addition,from the search and classification of a large number of qualified judicial cases,it is necessary to clarify the judicial identification path of debt accession and guarantee by using legal interpretation methods combined with the aforementioned doctrinal distinctions and comparative laws.Specifically,the principle of literal interpretation should be adhered to first,that is,the literal interpretation of legal acts according to the rules of interpretation of meaning in Article 142 of the Civil Code.However,due to certain limits of interpretation,when there are special circumstances such as contradiction between the content and wording of the promise,multiple meanings or ambiguity of the wording,etc.,which are sufficient to support deviation from the interpretation of the text,it is necessary to combine the criteria of interest,the actual performance and the standard of performance to carry out the supplementary rules of interpretation when the meaning is flawed,and to clarify the true intention of the third party in each case.If the true intention of the third party cannot be determined according to the interpretation rules of Article 142 of the Civil Code,the proposed "presumption of doubt as guarantee" stipulated in Article 36(3)of the Interpretation of the Guarantee System shall be applied,which is similar to amended Article 686(2)of the Civil Code of China in terms of system value.The inadequate supply of the debt accession rules system needs to be solved by the combined efforts of other systems,especially the guarantee system with similarities.When there is no specific provision in the General Provisions of the Civil Code,the judge may adopt the legislative technique of reference application,which has been completed by the legislator with certain normative choice and value judgment,and apply the relevant guarantee rules that are not contradictory to the essence of debt accession,i.e.,the relevant guarantee rules that are not based on the principle of subordination and complementarity,in accordance with Article 467(1)of the Civil Code.