保证方式、保证期间、诉讼时效与保证责任——对担保法施行前所发生保证行为的法律分析

保证责任与保证方式、保证期间和诉讼时效直接相关。保证方式不同,保证人承担保证责任的顺序和强度不同。保证期间届满,保证责任免除,保证债务诉讼时效问题也就不存在;保证期间终结,保证债务生效从而不再受保证期间约束,而受保证债务诉讼时效约束。主债务诉讼时效与保证债务诉讼时效之间的关系应当是:前者届满,后者也届满;前者中断,后者未必中断;后者中断,前者必定中断。保证债务诉讼时效届满,保证债务沦为自然之债,债权人丧失请求人民法院强制保证人承担保证责任的胜诉权。对担保法施行前所发生保证行为的保证责任认定,应当遵循上述法理、适用相关法律和司法解释之规定,而不能以有关通知为依据。

Modes of Suretyship, Terms of Suretyship,Limitations of Actions and Suretyship Liability-An Legal Analysis of Guaranty Acts Which Occurred before Implementation of Guaranty Law of PRC

The suretyship liability is directly correlative with the mode of suretyship,the term of suretyship and limitations of actions. Between the different modes of suretyship, the order in which the sureties undertake the suretyship liability and the intensities of the suretyship liability are different. If the term of suretyship expires, the surety shall be relieved of the suretyship liability and the limitation of action for suretyship debts shall not exist. When the term of suretyship terminates, suretyship debts become effective and are no longer bound by the term of suretyship, but shall be bound by the limitation of action for principal debts. The relations between the limitations of actions for principal debts and suretyship debts are that the latter also expires if the former expires,the interruption of the former may not result in that of the latter,and that the interruption of the latter undoubtedly results in that of the former. When the limitation of action for suretyship debts expires, suretyship debts become natural debts which can't be taken by enforcement measures to discharge. In cognizance of suretyship liability of the surety whose guaranty act occurs before implementation of Guaranty Law of PRC,we should follow the above-mentioned legal principles and apply the related provisions of law and judicial interpretation instead of the Information of SPC.