On January 17, lawyer Feng Yaru of Henan Changhao law firm made a topic sharing on the changes of the guaranteed contract system in the Civil Code.

This sharing mainly from the "civil code" security system of a brief review, the security system of several important revision of interpretation, the co-guarantor of the right to explore several aspects of the legal analysis.

A suretyship contract, as stipulated in Title III, Subtitle II, Chapter 13 of the Civil Code, means that in order to guarantee the realization of a creditor's right, the surety and the creditor agree that, when the debtor fails to perform the obligation due or when the situation agreed upon by the parties occurs, a contract whereby a surety performs a debt or assumes liability. The obligation of the guarantor to perform the obligation or assume the responsibility comes from the agreement of the guaranty contract, which can be a written contract concluded separately or a guaranty clause in the contract of the principal creditor's rights and obligations. The Civil Code has made some important adjustments to the guarantee system in the guarantee law. In contrast to the provisions of the Civil Code on the Guarantee Act, we can see the following major adjustments:

（一）Changes in the criteria for determining the type of liability for warranties

The way of guarantee includes general guarantee and joint and several liability guarantee, and the type of guarantee liability of guarantor should be judged according to the agreement of the parties in the guarantee contract. If the parties stipulate in the suretyship contract that the surety shall bear the suretyship liability when the debtor fails to perform the debt, the surety shall be the general suretyship; if the parties stipulate in the suretyship contract that the surety and the debtor shall bear joint and several liability for the debt, guarantee for joint and several liability. Article 19 of the Guarantee Law stipulates: If the parties do not agree on the method of guarantee or the agreement is not clear, they shall bear the guarantee liability according to the guarantee of joint and several liability. Article six hundred and eighty-six, paragraph 2, of the Civil Code has been amended to read: If the parties do not stipulate or do not specify the manner of guaranty in the guaranty contract, they shall bear the guaranty liability in accordance with the general guaranty. This change reflects the protection of the rights and interests of the guarantor. In practice, not all guarantors have sufficient legal knowledge, many guarantors promise to undertake the guarantee responsibility at the beginning, it is not clear that the law provides that the creditor can go beyond the debtor to ask the guarantors to undertake the guarantee responsibility directly, they do not realize that if they only want to assume the general guarantee responsibility, they need to make it clear in the guarantee contract.

（二）The change of legal effect produced by the transfer of creditor's rights without notice to the guarantor

Article twenty-eight of the interpretation of the Supreme People's Court on certain issues concerning the application of the Security Law of the People's Republic of China stipulates: during the guarantee period, if the creditor assigns the principal claim to a third party according to law, the creditor's guarantee right shall be assigned simultaneously, the guarantor undertakes the guaranty liability to the transferee within the scope of the original guaranty. Article six hundred and ninety-six of the Civil Code has been amended to the effect that an assignment of a creditor's right by the guarantor shall not be effective against the guarantor if the guarantor has not received notice of the assignment of the creditor's right. This change urges the creditor who has the obligation of notification, namely the creditor who has assigned the creditor's right, to notify the guarantor of the information of the assignment of the creditor's right in a timely manner. Otherwise, the guarantor has fulfilled the obligation of guarantee as agreed in the original contract, the consequence should be borne by the original creditor who has the duty of notice, and the creditor who has accepted the assignment should claim the right to the debtor and the original creditor, which reduces the burden of the guarantor.

（三）The change of guarantee liability when two or more guarantors do not agree on the guarantee share

Article 20 of the interpretation of the Supreme People's Court on certain issues concerning the application of the Security Law of the People's Republic of China provides that: where the debtor jointly guaranteed fails to perform its obligations at the expiration of the period of performance of the obligations provided for in the main contract, the obligee may require the obligor to perform the obligation, or may require any of the guarantors to assume the full guarantee liability. After the guarantor of joint and several guaranty assumes the guaranty liability, the portion that can not be recovered from the debtor shall be shared by each joint and several guarantor in proportion to its internal agreement. If there is no agreement, share it equally. Article six hundred and ninety-nine of the Civil Code stipulates that if there are more than two guarantors for the same debt, the guarantors shall bear the guarantee liability in accordance with the guarantee share agreed upon in the guarantee contract; if no guarantee share is agreed upon, the creditor may request any of the guarantors to undertake the guarantee responsibility within the scope of its guarantee. Through the comparison of the articles, it can be found that the civil code does not specify that one of the guarantors can recover from the other guarantors after undertaking the guarantee responsibility to the creditor. Article twenty-nine of the Supreme People's Court, which came into effect on January 1, stipulates that there are more than two guarantors for the same debt, where a creditor claims that he has exercised his rights in accordance with the law to some guarantors during the guarantee period, the People's Court shall not support the claim that he has exercised his rights to other guarantors during the guarantee period.

Where there are more than two guarantors for the same debt, and the guarantors have the right of recourse against each other, and the creditor fails to exercise the right of recourse against some guarantors in accordance with the law during the period of guarantee, resulting in the loss of the right of recourse by other guarantors after assuming the guarantee responsibility, the People's Court shall support the claims of other guarantors for exemption from the liability to the extent that they can not be recovered.

The guarantee period belongs to the exclusion period. The value of the exclusion period mainly lies in eliminating the uncertainty of the legal interests brought by the right of formation as soon as possible, and stabilizing the legal relationship between the parties. The first paragraph of this article requires the creditor to make a separate claim to each guarantor within the period of the guarantee, and the claim to one guarantor is less effective than the claim to the other guarantors.

Paragraph 2 of this article, which is closely related to paragraph 1, changes the previous judicial interpretation and does not claim rights during the warranty period, the guarantor shall be exempt from liability and shall not be subject to subsequent recovery.

On the one hand, any guarantor who does not voluntarily agree on a guarantee share at the beginning of its commitment to guarantee shall be deemed to be willing to assume guarantee responsibility for all debts under the main contract; on the other hand, the ultimate bearer of the debt remains the debtor and not the other guarantor. Therefore, if some guarantors assume the guarantee responsibility, they should recover the money directly from the debtor instead of from each other. The change of this system can be regarded as the protection of the interests of some guarantors.