Research on Liability Assurance

Author: Li Mingfa
Publisher:
Publish Date: 2006-08-01
Features: The guarantee system, which originated and initially took shape in Roman law, as well as the differences and even conflicts in the adoption and development of their respective guarantee systems by civil law countries such as France, Germany, Italy, and Japan, provide ample space for rational thinking in the legal theory and legislative research on this issue. The ideological light, institutional value judgments, and structural considerations of specific systems they embody all offer valuable insights when analyzing the entire guarantee system, including the issue of guarantee liability, which is a rather complex problem. In the decades-long effort by the Chinese legal community to establish a civil guarantee system distinct from traditional private law, although numerous works have been published on the study of guarantee systems, specialized research on guarantee liability remains relatively weak. Therefore, the significant theoretical value of Professor Li Mingfa's monograph Research on Guarantee Liability and its role in China's private law legislation and judicial practice are self-evident.
The author approaches the core issue of guarantee liability with a scientific, rigorous, steady, and calm attitude, employing research methods such as comparative analysis, the organization and critique of viewpoints, and empirical analysis. He provides a detailed and systematic review and study of fundamental theoretical issues as the basis for the theory and institutional design of guarantee liability, including the guarantee contract, the scope and definition of the guaranteed debt, and the guarantor's capacity to compensate and guarantee liability. The author's research on the exemption of guarantee liability, the civil liability for invalid guarantees, and special guarantee liabilities offers many highly beneficial insights. Throughout the work, the author constructs a research framework based on his understanding of the guarantee liability system and collects a vast amount of legislative norms and scholarly opinions, demonstrating excellent integration of the material. His analysis of related issues is insightful, and he presents his own unique perspectives on the relationship between the guarantor's capacity to compensate and their capacity for civil conduct, as well as their connection to the guarantee contract. For example, the author argues that a guarantor should be a person with full civil capacity for acts. However, the guarantor's ability to compensate for debts has no bearing on the validity of the guarantee contract. This is because, for natural persons, those without capacity for civil acts or with limited capacity cannot engage in guarantee activities, primarily due to factors such as age, intelligence, and mental state, which prevent them from clearly understanding the legal consequences of such actions. This is also done to better protect their rights and interests, not because they lack the corresponding financial resources or ability to perform. The author's elaboration and proposals on invalid guarantee liability and special guarantee issues are highly insightful and persuasive.
Particularly noteworthy is that in the current research on private law theory in China, there exists a "tendency to overemphasize foreign legislation and views while neglecting domestic legislation, judicial practices, and scholarly opinions" (a "thick foreign, thin domestic" phenomenon). In this context, the author of this work maintains a broad perspective by incorporating foreign legislative and scholarly views into his analysis while steadfastly focusing his observation and analysis on China's relevant legislation, judicial interpretations, and theoretical discussions, ensuring that his research is firmly grounded in the local context.
The guarantee system, which originated and initially took shape in Roman law, as well as the differences and even conflicts in the adoption and development of their respective guarantee systems by civil law countries such as France, Germany, Italy, and Japan, provide ample space for rational thinking in the legal theory and legislative research on this issue. The ideological light, institutional value judgments, and structural considerations of specific systems they embody all offer valuable insights when analyzing the entire guarantee system, including the issue of guarantee liability, which is a rather complex problem. In the decades-long effort by the Chinese legal community to establish a civil guarantee system distinct from traditional private law, although numerous works have been published on the study of guarantee systems, specialized research on guarantee liability remains relatively weak. Therefore, the significant theoretical value of Professor Li Mingfa's monograph Research on Guarantee Liability and its role in China's private law legislation and judicial practice are self-evident.
Focusing on the core issues of guarantee liability, the author conducts a comprehensive and systematic study, and provides a detailed review of existing research and foreign legislative examples. By analyzing actual cases in the field of guarantees in conjunction with theoretical frameworks, the work is a valuable collection of materials and academic research.