Why should the guarantee company sign a counter-guarantee agreement?

The Counter-guarantee Law provides a comprehensive guarantee system for debts, but only stipulates the principle of counter-guarantee derived from the guarantee system: "When a third party provides a guarantee for the debtor to the creditor, it may require the debtor to provide a counter-guarantee". Due to the lack of research on the special problems in the guarantee system of counter-guarantee in academic circles and the lack of detailed provisions in foreign legislation, people still have vague or even wrong understanding of many problems in counter-guarantee \ x0d \ x0d \ 1。 The concept of counter-guarantee \ x0d \ x0d \ After the promulgation of the guarantee law, it is generally believed that counter-guarantee refers to the guarantee provided by the debtor to the third party who provides guarantee for its creditors, or refers to the guarantee provided by the debtor to the third party at the request of the third party when the third party provides guarantee for the debtor. From this point of view, counter-guarantee is a kind of guarantee, the debtor is the guarantor in the counter-guarantee relationship, and the third party is the guaranteed party. From the analysis of this principle, we can only realize that the counter-guarantee is just a general guarantee in terms of the relationship between the debtor and the third party, that is, relative to the original guarantee (the guarantee established by the third party for the principal creditor's rights). Counter-guarantee still has the characteristics of limited real right, subordinate right, value right and variable price right, and it also fully conforms to the nature of indivisibility and subrogation of general guarantee. The author believes that counter-guarantee refers to the guarantee set by a guarantor other than the debtor to ensure the realization of the debtor's right of recourse in the future, in short, it is the guarantee of guarantee. \ x0d \ x0d \ counter-guarantee is established on the basis of existing guarantee. As the symmetry of counter-guarantee and the premise and basis of counter-guarantee, this kind of guarantee refers to and is limited to "the guarantee provided by the third party for the debtor to the creditor", but does not include the guarantee provided by the debtor to the creditor. Because when the debtor is a guarantor, there is no recourse that can be expected, and there is no way to set up a counter-guarantee for it. In this letter of guarantee, the third party who provides guarantee for the debtor to the creditor, when the debtor fails to perform the debt within the time limit, shall bear the guarantee liability according to the contract and the law, and pay off the debt with its own property. After the debt is paid off, the guarantor becomes a new creditor of the debtor and has the right to recover from the debtor for the debt paid off on his behalf. Just as the creditor asks the debtor or a third party to provide a reliable guarantee for the performance of the debt because he is worried about the debtor's solvency, the third party who provides a guarantee for the debtor to the creditor often considers whether the expected right of recourse can be realized after it becomes a vested right for his own benefit. In order to avoid or reduce the risk of the realization of his right of recourse, he may require the debtor or someone other than the debtor to provide counter-guarantee in advance according to the circumstances, so as to ensure the realization of his right to recover losses from the debtor after assuming the guarantee responsibility. \ x0d \ x0d \ II。 The legal relationship of counter-guarantee \ x0d \ x0d \ Counter-guarantee is subordinate and based on the existence of this legal relationship of guarantee. The legal relationship of counter-guarantee includes a main contract and two guarantee contracts, which are interrelated and independent: the main contract, that is, the basic contract. The two parties are creditors and debtors respectively; A guarantee contract is a subsidiary contract of the main contract. In a guarantee contract, there are three parties: the creditor, the guarantor and the debtor. The guarantor's guarantee responsibility is mainly to ensure that the debtor can repay the debt in time. When the debtor fails to perform, the guarantor will perform or bear joint liability on his behalf. Counter-guarantee contract can be said to be a subsidiary contract of guarantee contract. In a counter-guarantee contract, there are three parties: the guarantor, the debtor and the counter-guarantor. Here, the guarantor becomes a creditor, and the counter-guarantor's guarantee responsibility is mainly to ensure that the debtor can repay the debts performed by the guarantor on behalf of the debtor in time. If the debtor fails to perform the debt on time, the counter-guarantor shall perform it on his behalf or bear joint liability. The counter-guarantee contract is actually a guarantee contract, except that the creditor in the contract is the guarantor of the original guarantee contract under the main contract. Therefore, the performance of the guarantor's guarantee responsibility in the counter-guarantee contract should be based on the premise that the guarantor's guarantee responsibility in the guarantee contract has been fulfilled. \x0d\\x0d\ III。 Characteristics of counter-guarantee \ x0d \ x0d \ 1. The object of counter-guarantee is different from this guarantee. The object of this kind of guarantee is the creditor's right to the debtor of the main contract, in other words, it is to guarantee the debtor's performance of the creditor's debt and the realization of the creditor's right. The object of counter-guarantee is the guarantor's right of recourse against the guarantor (debtor). This right of recourse was established when the guarantee contract was established according to law, and actually occurred after the guarantor assumed the guarantee responsibility. Its nature is a new creditor's right arising from the guarantor's repayment of debts based on the contractual relationship. The creditor's right of the guarantor to recover losses from the debtor is different from the creditor's right of the main contract in subject, cause and scope. \ x0d \ x0d \ 2。 The parties to a counter-guarantee contract are different from a guarantee contract. The parties to a guarantee contract are different because of the different guarantee methods and guarantors. In the mortgage, pledge and deposit guarantee in which the debtor is the guarantor, the parties to the guarantee contract and the parties to the main contract are competing, and both parties are creditors and debtors. In the guarantee, mortgage and pledge of a third party other than the debtor as the guarantor, the relationship between the creditor, the debtor (guarantor) and the guarantor is maintained by three closely related but different contracts, namely, the main contract, the entrustment contract and the guarantee contract. Among them, the parties to the guarantee contract are the creditor and the guarantor, while the debtor is not the party to the guarantee contract. Although there is a main contract relationship with the creditor and an entrusted contract relationship with the guarantor, it is also subject to the effectiveness of the guarantee contract. In the case that the parties have not concluded a guarantee contract or an entrustment contract separately, but only specified the relevant contents in the main contract and signed by all parties, the contract is essentially a merger of three contractual relationships: the main contract, the entrustment contract and the guarantee contract, and the three legal relationships of the creditor, the debtor and the guarantor are still related and different. \ x0d \ x0d \ Similarly, both parties to the counter-guarantee contract are creditors and guarantors, but the principals of these two parties are quite different from this guarantee contract. The creditor in the counter-guarantee contract is the guarantor who provides guarantee for the debtor in this guarantee and enjoys the right of recourse against the debtor, that is, the guarantor; The guarantor in a counter-guarantee contract can be the debtor himself or someone other than the debtor. The creditors in the main contract and the guarantee contract are no longer the parties to the counter-guarantee contract, nor are they interested parties. Whether the counter-guarantee is set or not, and how it is set, has nothing to do with this. The counter-guarantor is only liable to the guarantor who has the right of recourse. Even if the guarantor in this guarantee is unable to bear the guarantee responsibility, if the guarantor is not fully compensated, the creditor of the main contract has no right to ask the counter-guarantor to bear the responsibility. For example, if Party B borrows RMB 654.38+million from Party C, and Party A provides guarantee for Party B and Party D provides counter-guarantee for Party A, then Party C has no right to ask Party D to undertake the guarantee responsibility when Party A is unable to undertake all the guarantee responsibilities. \x0d\\x0d\3。 The subordination and complementarity of counter-guarantee have special manifestations \ x0d \ x0d \ Counter-guarantee is also a kind of guarantee, so it also has the inherent subordination and complementarity of guarantee. However, this duality has a special performance in counter-guarantee. Unlike the guarantee contract, which is subordinate to the main contract between the creditor and the debtor, the counter-guarantee contract is subordinate to the guarantee contract between the guarantor and the creditor, which is subordinate to the guarantee contract rather than the main contract. That is, the guarantee contract is subordinate to the main contract, but it is in the position of "main contract" relative to the counter-guarantee contract. The establishment, effectiveness, modification and cancellation of counter-guarantee are not directly determined by the main contract between the creditor and the debtor (but the main contract may have an indirect impact on the counter-guarantee contract), but by the guarantee contract. Similarly, the complementarity of counter-guarantee liability is not relative to the debtor's liability for non-performance of debts in the main contract, but refers to the counter-guarantor's liability for paying off the guaranteed losses after the guarantor obtains the right of recourse against debts. The application of counter-guarantee in China's real economic life is more and more frequent and extensive. The reason is nothing more than that the creditor requires the principal debtor to provide him with a guarantee that he thinks is satisfactory, so as to realize his creditor's rights faster and better, so as to avoid the complicated procedures and troubles of exercising his mortgage and pledge. When the guarantor provides a guarantee, he is worried about the realization of the creditor's rights he guarantees, so he has a counter-guarantee. There is no essential difference between counter-guarantee and guarantee in essence. Only at a certain time or under certain circumstances, taking the guarantee as the premise and basis, can the guarantee be established under certain circumstances. There is a certain internal relationship between this guarantee and counter-guarantee, so counter-guarantee is also a guarantee, or counter-guarantee is a guarantee. However, in practice, the protection of the interests of counter-guarantee holders should be clarified and protected, so that counter-guarantee can play a greater role, promote China's commercial exchanges and economic development, and truly become a tool for citizens to improve themselves and public welfare.