【作者】 史岚；

【导师】 李建华；

【作者基本信息】 吉林大学 ， 民商法学， 2008， 硕士

【摘要】 保证人的抗辩权可以分为三类:保证人为一般债务人所享有的抗辩权、保证人享有的主债务人的抗辩权和保证人的专属抗辩权。本文根据此种分类方法,依照我国现行法律的规定,总结了我国现行法律关于保证人抗辩权规范的现状。针对我国关于保证人抗辩权规范的现状,本文指出了缺陷,并在此基础之上,提出了自己的完善建议。希望通过宏观和具体制度上的建议来凸显保证合同当事人间的平等性,促进保证这一担保形式的合法、合理、公平的运用,进而完善保证制度,以期达到财产快速、稳定流转的目的。更多还原

【Abstract】 As a guarantee system of debt, guarantee had a long history since the old time. And it now was still displaying its great important function. The guarantee is the important mean to safeguard the creditor’s benefit. In the practice, the people often pays too much attention on guarantor’s duty and responsibility, thus, to a certain extent, has neglected promotion of guarantor’s right and restriction of creditor. This causes the guarantor to be embarrassed at the weak trend position. The counterargument right of the guarantor is taken as a basic content of balancing the different civil subject benefit to put in the legislation, to restricting the creditor, strengthening the guarantor right protection, maintaining the balance of the benefit between main bodies of guarantee contract.In our country, generally, the counterargument right of the guarantors mainly includes generally counterargument right and the exclusive counterargument right. However the author believed that so-called is ordinary and is exclusive is only a relative concept, its standard will be different, and so the conclusion which will obtain will also vary. In the logically coherent argument the general counterargument right, the author believed that may divide into it two kinds: guaranteed the artificial common debtor; and, the guarantor enjoys counterargument right of the main debtor. Actually, speaking of these two kinds of rights, the guarantor enjoys the main debtor also belongs specially counterargument right, but they enjoy to compare with the guarantor exclusive counterargument right, which also belonged to counterargument right generally. Therefore, the author believed that the guarantor counterargument right possibly can be divided into three kinds: counterargument right of Guarantor as the artificial common debtor, counterargument right of the guarantor as the main debtor and the guarantor’s exclusive counterargument right.The so-called counterargument right of guarantor as artificial common debtor, is refers to the guarantor to take the contract as a debtor side, is the same with other all debtor, enjoying its achievement common debtor to counterargument right, namely the guarantor takes counterargument right which the ordinary debtor has. The author believed that the so-called guarantee artificial common debtor’s counterargument right, is mainly aims at the guarantee contract which between the guarantor and the creditor signs, that is to say, in guarantees of the contract, the guarantor, speaking of the creditor is a debtor, enjoys counterargument right which the common debtor has, but it is not in the creditor’s rights debt contract guaranteed artificial that it provides the guarantee the debtor counterargument right. Counterargument right of the guaranteed the artificial common debtor has many types, this article elaborated three kinds that are quite importantly in counterargument right: the guarantee contract to counterargument right, the guarantor emphatically to guarantee that invalid the contract the cancellation counterargument right and the effectiveness counterargument right.The guarantor exclusive counterargument right, is refers to, take the main contract debtor who decided based on the guarantee contract relative independence, which does not take the counterargument right as the premise, but obtains directly by the guarantor with resistance request of power main creditor one which enjoys specially the kind counterargument right. In our country, the guarantor exclusive counterargument right mainly to have five types :sues first counterargument right; the host contract counterargument right, guarantee period invalid counterargument right, the thing to guarantee first counterargument right and the special relief counterargument right.Although our present "Guarantee Law" had stipulated the more complete guarantee system, gives the guarantor in the legislation many protections, this is a big progress truly, but these systems have not formed a complete system, has many deficiencies. This article believed that our country present guarantors counterargument right system existence the flaw to be possible to divide into the flaw and the concrete system’s flaw into two kinds in macroscopically.Flaws of the present guarantor counterargument right system macroscopically mainly include the flaws in legislative thought and the legislation not unified and not comprehensive. Our country legislator always protects creditor’s benefit, and the legislative balance favors the creditor, thus it caused the guarantors undertake too much duty and responsibility, which is not good to arouse guarantor’s enthusiasm. Moreover, in the current law, counterargument right stipulation is not very comprehensive and systematical, and it has many inconsistent places, which seriously damages the law’s authority and has not favored the concrete implementation of the legal norm.The flaws of the concrete system of Our country present guarantors counterargument right mainly include four kinds: flaws in sending a peremptory notice counterargument right, the estimation joint liability’s flaw, the responsibility flaw when the thing guaranteed and guarantee coexisting and sue first counterargument right .Because our "Guarantee Law" stresses to the creditor creditor’s rights protection and emphasis the guarantee responsibility joint, the result has not sent a peremptory notice to confirm the guarantor counterargument right, which causes guarantor’s this right to become a blank in the legislation. Our "Guarantee Law" takes the joint liability the general guarantee responsibility the system designs to be without doubt advantageous to the creditor and the debtor, is disadvantageous to the guarantor, and has the obvious malpractice. Our "Guarantee Law" has not concrete provision, when the guarantee and the security interest also exist, the creditor has not given up the security interest the benefit, when actually first requests the guarantor undertakes the responsibility, the guarantor whether has counterargument right. Current legislation“property of the main debtor will not have paid off its debt to include insufficient”limits the guarantor to exercise sues first contradicts the power the legal situation. Contradicted the power system existence in view of our country present guarantors the flaw, the author proposed consummated the suggestion. Macroscopically, the author in view of the legislative thought’s flaw, through to "Guarantee Law" 30th with "Guarantee Law Explanation" the 7th analysis and the suggestion, proposed oneself consummate mentality. In view of the legislation in not unified, not the comprehensive flaw, the author put forward two proposals: First, sets up the guarantor to counterargument right chapter, is clear about each stipulation; Secondly, unification legislation. counterargument right concrete system’s flaw in view of our country present guarantors, here the author put forward some proposal: First, our country should additionally build the guarantor to send a peremptory notice counterargument right; Secondly, when the agreement or the agreement are unclear guaranteed that the way should estimate is the general guarantee; Thirdly, the thing guarantees with guarantee coexisting when should be clear about the responsibility to share; Fourthly,“property of the main debtor pays off its debt should insufficient”to include limits the guarantor to exercise sues first counterargument right the legal situation.更多还原