保证合同效力研究
发布时间：2018-12-12 05:10
【摘要】：作为一种基于基础合同和保证合同而产生的债权担保方式,保证在本质上是一种合同之债,债权人基于保证合同向保证人行使合同之债请求权,保证人则基于保证合同行使相应的抗辩权利,双方权利义务的起点都是保证合同的效力问题,在实践中,当事人也易于陷入合同效力问题的争执。对保证这一担保制度的探讨应当以对保证合同效力的确认为逻辑起点。故而本文企图以保证合同效力为研究对象,以通行的合同效力理论和主从合同理论为基础,结合各方观点和域外立法例及我国现行法,以法解释学和比较研究为主要方法,对涉及保证合同效力的部分特定法律问题展开探讨。在行文结构上,本文分六个部分加以分析。绪论部分主要叙述文章写作的缘起以及文章要探讨的主要问题以及写作本文所欲实现的意图。第一章研究的是保证合同成立的有关问题,特别是对保证合意的范围以及保证合同的特殊形式加以了细致的分析。第二章针对影响保证合同自身效力的合同主体因素、意思表示因素以及效力性强制规范因素三个角度分别加以研究,其中以对影响当事人保证意思真实和自由的多种情形的研究为重点。第三章是从主从合同理论出发对保证合同效力从属性规则相关问题的论述,其中研究的重点是保证合同效力从属性规则是否应当允许当事人以合意加以排除的问题。第四章是依从立法对保证合同无效原因两个方面的界定,分别对两种无效类型下原保证人责任承担这一特别问题加以研究,本章立足现行法对保证无效后原保证人责任承担的规定,陈述了作者对这一问题的基本观点。结束语部分是对论文主要观点的总体性概括,坦陈作者对论文议题研究的局限与不足。本文的研究目的在于分析现行法律对保证合同效力规定的瑕疵与不足,以期为未来立法关于保证合同效力的规定提供一定的建议。笔者相信,随着我国民法法典化工作的展开,对保证的相关规定也将日趋合理,保证这一担保方式在市场交易中的作用也会进一步地发挥。
[Abstract]:As a form of creditor's rights guarantee based on the basic contract and the guarantee contract, the guarantee is essentially a contractual debt, and the creditor exercises the contractual right of claim against the guarantor on the basis of the guarantee contract. The guarantor is based on the guarantee contract to exercise the corresponding defense rights. The starting point of both parties' rights and obligations is the validity of the guarantee contract. In practice, the parties are also prone to get into disputes about the validity of the contract. The discussion of the guarantee system should take the validity of the guarantee contract as the logical starting point. Therefore, this paper attempts to take the guarantee of contract validity as the object of study, based on the prevailing contract effectiveness theory and the principal and subordinate contract theory, combining the views of various parties, the extraterritorial legislative cases and the current law of our country, and taking the hermeneutics of law and comparative study as the main methods. This paper discusses some specific legal issues concerning the validity of the guarantee contract. In the structure of the text, this paper is divided into six parts to analyze. The introduction part mainly narrates the origin of writing, the main problems to be discussed and the intention of writing this paper. The first chapter is concerned with the establishment of warranty contract, especially the scope of surety agreement and the special form of surety contract. The second chapter focuses on the factors of the contract subject, the expression of will and the mandatory norm of validity, which affect the validity of the contract itself. Among them, it focuses on the research of various situations that affect the parties' guarantee of meaning authenticity and freedom. The third chapter is the discussion of the rules of subordinate attribute of guarantee contract from the view of the theory of principal and slave contract, in which the focus of the study is whether the rules of subordinate attribute of guarantee contract should be excluded by agreement of the parties. The fourth chapter is the definition of the reason of invalidity of guarantee contract according to the legislation, and studies the special problem of the original guarantor's liability under the two kinds of invalid types. Based on the provisions of the current law on the liability of the original guarantor after the invalidation of the guarantee, this chapter states the author's basic views on this issue. The conclusion part is a general summary of the main points of the thesis, and frankly states the limitations and shortcomings of the author's research on the topic of the thesis. The purpose of this paper is to analyze the defects and deficiencies of the existing law on the validity of the warranty contract, in order to provide some suggestions for the future legislation on the validity of the guarantee contract. The author believes that with the development of the codification of the civil law in China, the relevant provisions of the guarantee will be more reasonable, and the role of the guarantee in the market transaction will be further developed.
【学位授予单位】：兰州大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.6
本文编号：2373976
[Abstract]:As a form of creditor's rights guarantee based on the basic contract and the guarantee contract, the guarantee is essentially a contractual debt, and the creditor exercises the contractual right of claim against the guarantor on the basis of the guarantee contract. The guarantor is based on the guarantee contract to exercise the corresponding defense rights. The starting point of both parties' rights and obligations is the validity of the guarantee contract. In practice, the parties are also prone to get into disputes about the validity of the contract. The discussion of the guarantee system should take the validity of the guarantee contract as the logical starting point. Therefore, this paper attempts to take the guarantee of contract validity as the object of study, based on the prevailing contract effectiveness theory and the principal and subordinate contract theory, combining the views of various parties, the extraterritorial legislative cases and the current law of our country, and taking the hermeneutics of law and comparative study as the main methods. This paper discusses some specific legal issues concerning the validity of the guarantee contract. In the structure of the text, this paper is divided into six parts to analyze. The introduction part mainly narrates the origin of writing, the main problems to be discussed and the intention of writing this paper. The first chapter is concerned with the establishment of warranty contract, especially the scope of surety agreement and the special form of surety contract. The second chapter focuses on the factors of the contract subject, the expression of will and the mandatory norm of validity, which affect the validity of the contract itself. Among them, it focuses on the research of various situations that affect the parties' guarantee of meaning authenticity and freedom. The third chapter is the discussion of the rules of subordinate attribute of guarantee contract from the view of the theory of principal and slave contract, in which the focus of the study is whether the rules of subordinate attribute of guarantee contract should be excluded by agreement of the parties. The fourth chapter is the definition of the reason of invalidity of guarantee contract according to the legislation, and studies the special problem of the original guarantor's liability under the two kinds of invalid types. Based on the provisions of the current law on the liability of the original guarantor after the invalidation of the guarantee, this chapter states the author's basic views on this issue. The conclusion part is a general summary of the main points of the thesis, and frankly states the limitations and shortcomings of the author's research on the topic of the thesis. The purpose of this paper is to analyze the defects and deficiencies of the existing law on the validity of the warranty contract, in order to provide some suggestions for the future legislation on the validity of the guarantee contract. The author believes that with the development of the codification of the civil law in China, the relevant provisions of the guarantee will be more reasonable, and the role of the guarantee in the market transaction will be further developed.
【学位授予单位】：兰州大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.6
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