On the Calculation of the Term of Suretyship under Special Principal Contracts

Abstract

After the enforcement of Civil Code of the People's Republic of China and the complementary Interpretation of the Guarantee System, there are still a number of issues that need to be clarified with respect to the starting point and duration of the term of suretyship under a special principal contract. After summarizing the existing judicial practice and academic discussions on a large number of related issues, propose some advice on the starting point of the term of suretyship under typical circumstances. When the principal contract is installment debt, the term of suretyship should be started from the date of expiration of the last installment of the debt; When the principal debtor is expected to default, the creditor should be given the right of free choice. If the creditor chooses to claim default liability from the debtor in advance, the term of suretyship should be started from the date of claim; if it does not, the term of suretyship should be started from the date of expiration of the principal obligation; When the principal contract is rescinded, the term of suretyship should be started from the date on which the creditor may claim civil liability for the rescission of the principal contract; where a counter-suretyship exists in addition to the principal contract, the term of suretyship should be started from the date on which the surety actually assumes his suretyship liability.