This difference of "quality" in the legal sense determines that the two cannot be confused in judicial practice.
(1) Differences in contract functions. According to the traditional theory of civil law, guarantee should be a unilateral free contract.
The witness only undertakes the obligation of guarantee, and has not been given corresponding consideration from the responsibility. Of course, the appearance of independent guarantee contract at present makes the double-service paid guarantee contract break through the traditional civil law theory. But after all, the application of independent guarantee contract is not popular enough, and its legal effect in China remains to be discussed. Guarantee insurance is a kind of insurance, and guarantee insurance contract is a typical two-service paid contract. British insurance law scholars believe that different motives of insurance and guarantee lead to different consequences when the contract is invalid. Guarantee that the contract is invalid. Guarantors generally have no interest to return because of their free services, but they still have to bear the liability for contracting negligence according to their faults. Once the insurance contract is guaranteed to be invalid and not due to the responsibility of the insured, the insurer must return the insurance premium paid by the insured; Or when the insurance contract is terminated, the insurer sometimes has to refund the insurance premium or part of the insurance premium.
(2) The parties to a contract are different. The parties to a guarantee contract should have three parties: the creditor, the debtor and the guarantor.
There should be no objection to this. However, there are many disputes about the parties to the guarantee insurance contract. Unlike the guarantee contract, which must be composed of three parties, the guarantee insurance contract can only be reached by the applicant (debtor) and the insurer. The insured (creditor), as an interested party in the guarantee insurance contract, can enjoy the claim for insurance money stipulated in the contract.
In addition, it is also a problem worth studying to ensure who the insured is in the insurance contract. Article 22 of the Insurance Law stipulates that the insured refers to the person whose property or person is protected by the insurance contract and enjoys the right to claim insurance money, and the applicant may be the insured. According to Article 2 of the original Personal Loan Guarantee Insurance Clause of Taiping Insurance Co., Ltd., the insured of this insurance is a commercial bank approved by the People's Bank of China to offer personal loans. Article 2 of the original performance insurance clause of the installment purchase contract of China Pacific Insurance Company stipulates that the insured of this insurance is an automobile dealer who has the obligation to sell cars by installment and has signed an installment purchase contract and an automobile mortgage contract with the insured. It can be seen that the provisions of various insurance companies mostly depend on the insurance law, and the creditors are regarded as the insured.
However, on August 30th, 1999, the China Insurance Regulatory Commission told the Supreme People's Court that the Reply of the Court of Appeal on Disputes over Guarantee Insurance Contract [CIRC 1999] pointed out: "The parties to a guarantee insurance contract are the debtor (guarantor) and the insurer (guarantor), and the creditor is generally not a party to the guarantee insurance contract, so it can be used as a contract. According to the letter from the CIRC, the insured is not a creditor, but a debtor. The CIRC thinks so, which actually reflects the differences in insurance law between common law system and civil law system. Anglo-American legal system thinks that the person who pays the insurance premium and enjoys the claim for insurance premium is the same person in principle and must have insurable interest in the subject matter insured; However, the civil law system believes that the obligation to pay insurance money and the right to claim insurance compensation can belong to different people because of the insurance interest, and the applicant and the insured cannot be the same person. It can be seen that the interpretation of the CIRC adopts the view of common law system. But the problem is that this interpretation is contrary to the provisions of the insurance law and different from the current domestic common practice, so it is best to correct it. At the same time, if the debtor is designated as the insured, it must be agreed that the debtor will pay the insurance money to the creditor after obtaining the insurance money. However, once the debtor is unwilling to perform the debt out of malice or the debtor goes bankrupt, the creditor can only claim the general creditor's right from the debtor again, and its creditor's right is still not guaranteed. This design is contrary to the original intention of insurance design. In addition, guarantee insurance is a kind of property insurance, and the concept of beneficiary is unique in life insurance. The reply of the CIRC violates the provisions of the Insurance Law and may be inappropriate. The author thinks that the Supreme People's Court's (1999) reply No.266 regards the creditor as the insured, which is more reasonable in our current judicial practice. (3) Insurers and guarantors have different rights of defense. When the debtor fails to perform the debt and the creditor makes a request, the right of defense of the insurer and the guarantor is obviously different. In general guarantee, the guarantor can plead the right of defense first; But the insurer does not have this right of defense. At the same time, both the insurer and the guarantor can refuse to perform or pay on the grounds that the insurance contract or the guarantee contract is invalid. In addition to the reasons that the contract stipulated in the contract law is absolutely invalid and the contract can be revoked, the insurer and the guarantor can defend themselves for their own special reasons. If the guarantor can argue that the main debt contract is invalid, the insurer can defend it according to the relevant provisions of the Insurance Law. Specifically, in the insurance law, the principle of utmost good faith is its soul and commander-in-chief, and the obligation of the insured to tell the truth derived from it has also become one of the cornerstones of the effectiveness of the insurance contract.
Although, in the guarantee contract, the guarantor can also deny the validity of the contract on the grounds of fraud by creditors and debtors, and the obligation of informing in bank lending is the embodiment of the principle of good faith, after all, the requirement of good faith in insurance contracts is much higher than that in guarantee contracts. For example, after the insurance contract is concluded, the insured still has the obligation to notify of the increase in danger, but the insured has no such obligation. On the one hand, it is the application of the principle of utmost good faith in the performance of insurance contracts, on the other hand, it is also related to the double-effect compensation of insurance contracts. The consideration (premium) of the insured has not increased correspondingly because of the increase of risk, which is unfair to the insurer. The insurer may think that the risks covered by the contract have changed substantially, and therefore terminate the contract or ask for an increase in insurance premium. In contrast, when the risk of the debtor's non-performance increases, the guarantor cannot take the creditor and the debtor's non-performance of the notification obligation of the increased risk as a defense. For another example, the insurer can argue that the insured has no insurable interest at the time of the accident, but the guarantor has no such defense.
(4)*** Same insurance and double insurance. According to the guarantee law, several guarantors can provide the same guarantee for the same debt. The guarantor shall bear the guarantee responsibility according to the guarantee share agreed in the guarantee contract. If there is no agreed share, the guarantor shall bear joint and several liability, and the creditor may require any guarantor to bear all the guarantee liability. The surety who undertakes the suretyship responsibility has the right to recover from the debtor or ask other sureties to bear their due share.
The so-called double insurance (also called double insurance), according to Jiang, a scholar of insurance law in Taiwan Province, China, refers to the contract behavior that several insurers conclude several insurances for the same insurance interest and the same insurance accident within the scope of damage insurance. At the same time, Jiang, an insurance law scholar in Taiwan Province, China, also believes that "the same insurance period" is an important content of reinsurance. Because several insurance contracts have the same insurance benefits and insurance accidents, if the insurance period is inconsistent, the insured may not get multiple insurance benefits.
If the sum of the insured amount of double insurance exceeds the insured value, the sum of the compensation amount of each insurer shall not exceed the insured value. Unless otherwise agreed in the contract, each insurer shall be liable for compensation in proportion to the insured amount. This provision is obviously different from the share sharing between * * * and the guarantor. If there is no contractual agreement between * * and the guarantor, the share shall be shared equally. There are different ways to share their responsibilities, mainly one is a free contract and the other is a paid contract.
(5) Different formal requirements. The function of guarantee is not only to promote the circulation of goods and provide preservation for the performance of debts, but also to prevent the guarantor from evading the guarantee responsibility and make the guarantee relationship clear and stable, and the guarantee is often required to be reflected in written form. Article 13 of the Guarantee Law stipulates the essential form of guarantee.
However, modern civil law is mostly based on the principle of free mode, except for laws or other provisions of the parties. The United States, Britain, Germany, Japan and other major insurance countries all stipulate that insurance contracts are essential contracts. There is no such provision in the Insurance Law. A concept must be made clear here: an insurance policy or a temporary insurance policy is not an insurance contract, but an embodiment of the contents of the insurance contract and belongs to an insurance certificate. Before the issuance of the insurance policy and the temporary insurance policy, if the insured and the insurer reach an agreement on the insurance matters, it shall be deemed that an insurance contract has been concluded. If one party makes an offer and the other party promises, the insurance contract has been established; Because the contents of insurance are complicated, it is best to materialize it into an insurance policy to avoid disputes.
(6) The influence after the transfer of creditor's rights is different. If the creditor transfers the creditor's rights, if there is no contrary agreement between the creditor and the guarantor in advance, the creditor's rights will be transferred at the same time, which fully embodies the preservation function of the debt guaranteed by the guarantee and the strong subordination of the guarantee to the main debt. Article 2 1 of China's Insurance Law stipulates: "During the validity of the insurance contract, the insured and the insurer may negotiate to change the relevant contents of the insurance contract. If the insurance contract is changed, the insurer shall annotate or attach an endorsement to the original insurance policy or other insurance documents, or the applicant and the insurer shall conclude a written agreement on the change. " From this point of view, if the applicant (creditor) transfers the creditor's rights without the consent of the insurer and fails to go through the formalities for changing the insurance contract, the claim for insurance money cannot be transferred together.
To sum up, the author thinks that guarantee insurance is a kind of insurance, and there is a legal difference between guarantee insurance and guarantee. In the application of law, the insurance law should be strictly applied in the trial of guarantee insurance disputes. Of course, there are many problems in the terms of guarantee insurance contracts formulated by various insurance companies at present. If some guarantee insurance contracts stipulate that the creditor is the first beneficiary, the concept of beneficiary in life insurance is misused in property insurance; Some contracts take the debtor as the insured, which leads to the claim of insurance money, which makes the legitimate interests of creditors not fully protected and fails to achieve the original intention of ensuring the establishment of insurance; Other guarantee insurance contracts are full of confusing concepts such as guarantor, guarantor and secured creditor's rights. These also remind insurers to seriously consider when drawing up a guarantee insurance contract.