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The American Chamber of Commerce in South China

visions on ??uarantee?? in the Guarantee Law into the 璇ュ?娉?В???灏??涓?姝ヨ????涓????璇??璇????
chapter on contracts. ????2000骞达??哄??????楂?汉姘???㈠?浜????<
涓??浜烘??卞??芥?淇??>?ュ共?????В?????34
The Guarantee Law provides that, if the parties fail to ?¤?瀹????????璇???烘?浜哄?淇?????灞?弧??
reach any agreement, or reach an agreement that is 瀵瑰?哄?浜烘?璧疯?璁兼????璇蜂徊瑁??锛???ゅ?????
unclear, on the method of guarantee, they shall bear 浠茶?瑁?????涔??璧凤?寮?濮??绠??璇?????璇??
the liabilities of guarantee in accordance with joint li- ?舵??????????″?娉?В????ㄧ??句?澶?????
ability25. However, the Civil Code completely overrides 涓????璇?????椤哄?锛???烘?浜烘?瀵逛富?哄?浜虹?
this previous provision, by providing that if the parties 璇峰己?舵?琛?????娓??涔??锛?????璇?汉???浠?
fail to reach any agreement, or reach any agreement ???灞ヨ?淇??璐ｄ换??????2000骞村?甯???告?瑙?
that is unclear, they shall bear the general liabilities of ???淇????????璁兼?????ゅ?????徊瑁???崇?
guarantee26, that is, the guarantor shall only assume its ????ヨ捣寮?濮??绠?????瀵瑰?烘?浜轰???钩?????
proportion of liability, instead of joint liability. Should ?告?瑙ｉ?淇??浜??瑙??锛??瀹???汉姘??????虹?
there be no agreed arrangement on the proportion of 缁??娆℃?琛??搴??瀹????????ф?浜??璁兼?绗??
liability, each party shall share an equal proportion. ?句?????＄?涓?」???浜?」???瀹???虹?缁??琛?
A guarantor bearing joint liability does not enjoy the 瑁????????瀹???揪?烘?浜轰??ヨ捣寮?濮??绠???汉
benefit of resistance. This means if the debtor fails to 姘???㈣??跺??宠??ц?涔???ヨ捣涓?骞村?????哄?
assume the debt, the creditor may require the guaran- 椤硅?瀹??锛??浜烘?娉???跺??宠??ц?涔?弧涓?骞翠?
tor to assume the liability of guarantee, and does not ?ヨ捣寮?濮??绠??浣??淇??浜烘?璇??璇???哄?浜轰?
need to file lawsuit to a court or apply for arbitration ??储浜у?渚??琛???ゅ?????30
to an arbitration organization. However, if the guaran-
tor is subject to general liabilities of guarantee, it shall e. 淇?????
assume such liability only when the debtor cannot
pay the debt. For example, in case of a guarantor with 淇?????????惰处娆剧??烘?浜哄?搴??璐??杞??缁?
general liability for guarantee, if a debtor fails to pay 淇??浜猴?淇??浜烘?渚???????互????惰处娆剧?
the debt, a creditor cannot directly request the guar- ??????舵??°???娆炬?淇??????????????涓?
antor to assume liabilities as it can do so in the case ??????绉??娈点?????娉????????璁句?绔??瀹?
of joint liability; instead, the creditor must file a law- 浜????????瀵逛???????姒?康???瀹瑰?褰㈠???
suit in courts or apply for arbitration to an arbitration ???搴??璐????????????汉???杞????????
tribunal. Upon the court?? judgement or the panel?? 杩界储????????杩界储??????澶??淇??绛??瀹逛?
arbitral award, if the creditor applies to the court for 浜??瀹???
enforcement, but the debtor still fails to pay the debt,
the creditor may have the right to request the guaran- ???娉?????瀹??搴??璐???烘?浜轰??哄?浜鸿???
tor to assume liabilities. If the creditor directly requests 搴??璐??浣?负杞?????锛??淇??浜鸿?绔???????
the guarantor to assume liabilities, the guarantor may ???搴??璐???哄?浜轰?寰?互搴??璐??涓???ㄤ负??
exercise its right of benefit of resistance for defense and 瀵规?淇??浜猴?浣??淇??浜烘??ヨ?????ゅ?31???
refuse to assume liability. 瑙???????????浜????????吉琛ㄧず???涓??瀵?
??????涓?汉???浣??锛??瑕?敞????惰处娆惧?烘?
The general guarantor has the right to refuse to as- 浜轰??哄?浜轰??撮?????吉琛ㄧず??????椤绘?杈惧?
sume the liabilities of guarantee in the event that the 浜?????涓???ㄧ????澶?????搴?????淇??浜?
dispute over the main contract has not been reviewed ??????澶便??
by a court or arbitrated, when the debtor still cannot
assume its debt even if its property is enforced pursu- 濡??淇??浜烘??ュ?纭???????锛??淇??浜哄??烘?
ant to law. However, there are three exceptions27. Com- 浜虹????琛?负灏??瀹??т负??捶锛????汉???瑕??
pared to the previous Guarantee Law, the Civil Code ?烘?浜鸿??????????????哄?浜轰富寮???┿??

25 Guarantee Law, Article 19 30 ???楂?汉姘???㈠?浜????<涓??浜烘??卞??芥?娉??>??
26 Civil Code, Article 686 ?虫?淇??搴??瑙ｉ????浜?????
27 Guarantee Law, Article 17 31 ???娉?????涓?????涓??

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