Rethinking and Reconstruction on the"Borrowing New Debt to Settle Old Debt"Security Norms
The purpose of the"borrowing new debt to settle old debt"security norms is to protect the interests of the guarantor.However,in practice,there have been huge difficulties in guarantor's defense aimed at exemption,such as the extension of the concept of"borrowing new debt to settle old debt"is too narrow,the guarantor can hardly prove the subjective consensus of the loan to repay,and the interpretation and application of the rules are biased in favor of the creditor.These difficulties are the result of inappropriate value judgment,unrealistic choice of interpretation,and dysfunctional legal method in the existing norms.Therefore,existing norms should be reconstructed.The normative basis for the guarantor's exemption should be the system of material mistake rather than the commonly held system of fraud.The reconstructed"borrowing new debt to settle old debt"security norms are based on Articles 147 of the Civil Code,the defense aimed to exemption is unaffected by guarantor's negligence or the creditor's fault.
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