중국 담보법상의 보증제도

Abstract

In China, Suretyship System is stipulated in Guaranty Law of the Peoples Republic of China and the Judicial Interpretation of the Supreme People’s Court on Some Issues Regarding the Application of the Guaranty Law of the People’s Republic of China. Article 6 - Article 32 of Guaranty Law Chapter 2 are about suretyship system,such as Section 1 suretyship and Surety, Section 2 Suretyship Contract and the Guaranty Mode, Section 3 Liability of Guaranty are about Article 13 - Article 46 of the Judicial Interpretation of the Supreme People’s Court are also about suretyship. Suretyship Contract must made in written form, including the principal debt amount, the deadline of the principal debt, the guaranty period, the guaranty mode and the scope guaranteed by the guaranty, etc. The guaranty modes includes the general guaranty and the joint liability guaranty. It will set up a joint and several liability if there are no special causes. When the debtor of the joint liability guaranty didn’t fulfill the obligation over the agreed debt discharge period, the creditor may require the debtor to fulfill the obligation or assume responsibility. And Defense by Surety of Peremptory Notice and Inquiry of the surety of the general guaranty is determined. The scope of the suretyship liability contains the principal debt amount and interest,the penalty,the damages liabilities and the cost of the realization of credit cost. In this point there are no differences from the suretyship liability in Korea. However, during the guaranty period when Creditors transfer the principal creditor’s right, they must get the surety’s agreement in writing. To the debt transferred without the surety’s agreement, the surety will be exempt from the suretyship liability. The same applies to the case when the creditor and the principal debtor make an agreement to change the content of the principal debt. It also means the surety’s agreement must be required. If there are no agreement between the creditor and the surety, the guaranty period will be defined as 6 months after the expiration of the term of the principal debtor. The surety can use the Right of Reimbursement to the principal debtor after he/she assumed the responsibility. In this point it is the same with Korea. But in Korea,there are no detailed provisions about the Right of Reimbursement of the surety that causes the high possibility of disputes. Moreover, it is different from Korea that there are no distinction between the Fiduciary Surety’s Right of Reimbursement and the Nonfiduciary Surety’s Right of Reimbursement.