担保法律关系内部结构辨析

Discriminating the Internal Structure of Legal Relationship in Guaranttee

当前国内有关担保法律关系内部结构的两种主要观点———结构形式的“三类三方论”和权利、义务关系的“对等论” ,不仅与法律关系的基本理论相悖 ,且实践中亦难觅根据。实际上担保法律关系的结构与一般民事法律关系的结构在形式上并无差别 ,其主体间的权利、义务关系虽然在担保法律关系内部未能对等 ,但是在担保法律关系的外部 ,在与主债关系的联系中则实现了对等和求得了平衡。

In relation to the internal structure of legal relationship in guaranttee, there are two principal viewpoints in our country at present which not only go against the basic theory of legal relationship but also are difficult to search basis in practice. They are “theory of 3 kinds and 3 sides” for structural form; and “theory of reciprocity” for relationship between right and obligation. Actually, there is no difference in form between the structure of legal relationship in guaranttee and that of commonly civil legal relationship. The relation of right and obligation between the subjects cannot be reciprocal inside legal relationship in guaranttee. However, reciprocity is realized and balance is obtained in connection with the relation of prime obligation outside the legal relationship in guaranttee.