论担保合同无效时担保人的法律责任.pdfVIP

Abstract The guarantee contract is not legally binding on the parties under the condition of being invalid. And guarantor does not need to shoulder the liability to guarantee according to the provisions of the guaranty contract. However, it does not mean that the guarantor need not bear legal responsibilities any more. The loss that creditor suffers because of invalid guaranty contract deserves legal remedies. And there is no explicit provisions about the nature of the liability which borne by the guarantor. In addition, different scholars have different opinions. This also partly influences the identification of the scope of the responsibility. Meanwhile, the item seven and eight of the Judicial Interpretation of Guarantee Law in theory and judicial practice even themselves have many problem. On the basis of case studies and semantic interpretation, this paper try to clarify the issue existing and make reasonable suggestions, in expectation to provide beneficial guidance on legislative and judicial work. In addition to the preface and epilogue, the article includes three parts: The first part focuses on the normative analysis of guarantor ’s liability under the invalidation of the guarantee contract. The Article5(2) of Guarantee Law make it clear that the guarantor is not of course exempt from responsibility under the invalidation of the guarantee contract and shoulder the responsibility on the basis of ‘fault’. In Article7 of Judicial Interpretation of Guarantee Law, the joint liability shall not be determined directly when the creditor is not at fault and a half division of the responsibility is unreasonable. In Article8 of the Judicial Interpretation of Gu