保证的独立性

保证是以保证人的一般财产而设定的、用一个合同去担保另一个合同(主债务)的履行之担保方式,有一定的独立性.我国民法理论和立法强调并突出了保证的从属性和补充性,一定程度上忽视了其独立性.为此,文章从保证制度的历史沿革、保证的成立及其内容、保证债务的范围和强度、保证变更或消灭的原因、保证人的抗辩权等方面分析了保证的独立性,并指出保证的相对独立性的理论价值和现实意义.

On the Independence of Suretyship

The suretyship is a form of guaranty, in which the performance of a contract (principal obligation) is guaranted by entering into a suretyship contract on the surety's general property. The suretyship is independent in some ways, which, however, is neglected to some extent by our theory and legislation which mainly focus on its dependence on the principal contract. In this paper, the authors analyze the independence of the suretyship from such aspects as the development of the suretyship, its conclusion and content, the scope of the suretyship guaranty, causes leading to the alteration or effect of the suretyship, the surety's right of defense,et al. and point out the theoretical and practical significance of stressing the independence of the suretyship.