The liability allocation rule for invalidity of guarantee contract gradually returns from the standpoint of protecting the interests of creditors to that of taking into account the interests of guarantors.However,based on the perspective of interest equity,there is still room for interpretation of the nature and scope of liability of fault guarantors'liability in Article 17 of the Guarantee System Interpretation of the Civil Code.When the guarantee contract is invalid alone,the fault guarantor should bear the compen-sation liability for the direct loss and indirect loss of the creditor.The maximum scope of compensation for the creditor's indirect losses is"the part that the debtor cannot repay",and based on the special attribute of the guarantee,the current law adopts an implied presumption attitude,which exempts the creditor from the burden of proof for the indirect loss.When the main contract is invalid and the guarantee contract is in-valid,the fault of the guarantor is that the main contract is invalid.Except that the creditor is a person with-out civil capacity,the guarantor has no fault in the main contract resulting in the invalidation of the guaran-tee contract for other invalid reasons,and shall not be liable for compensation of the main contract.The fault of the guarantor for the invalidation of the master contract is mainly manifested as implementing the revocable act alone or jointly with the debtor or helping the debtor to implement the revocable act.The main regulation object of Article 17,paragraph 2,of the Interpretation of the Guarantee System of the Civil Code should be the invalidation of the guarantee contract caused by the cancellation of the master contract by the creditor,and the"invalidation of the master contract"in this paragraph should be expanded.When the main contract is invalid and the guarantee contract is invalid,the liability of the fault guarantor can be di-vided into three ways:the fault of the third party,the tort liability and the guarantee liability.The tort lia-bility path is compatible with the fault and the scope of liability,which is the best way to effectively curb the dishonest guarantee behavior.
关键词
担保合同/第三人缔约过失责任/损害担保之债
Key words
Contract of Guarantee/Third Party Liability for Contracting Negligence/Debt with Guaranteed Damages
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