论独立保证的典型化与类型化

On the Typification and Classification of Independent Guarantee

现行法上,保证合同从属于主债权债务合同,保证合同亦因此被称之为从属保证。但基于契约自由原则,保证合同的从属性可因当事人之间的例外安排而破除,形成所谓的独立保证。源于交易实践的需求而发展起来的这种独立保证,已经不再是传统民法上所说的保证合同,随着其权利义务的固定化,就有了进一步典型化的需要。有名化的独立保证还可进一步地类型化为一般独立保证和见索即付独立保证,前者放弃了保证人本可主张的主债务人基于主合同所生的抗辩权;后者更进一步地放弃了保证人基于保证合同所生的抗辩权。

As stipulated in current legal acts,the guarantee contract is accessory to the main contract and therefore is called accessory guarantee. However, based on the principle of freedom of contract, the accessory nature may be broken by the contrary arrangements between the parties, effecting the so-called independent guarantee. This kind of independent guarantee developed form the trading practices,is no longer the guarantee contract in the traditional civil law. With the standardization of its rights and obligations, it is further necessary to typify this kind of trade. After the typification of independent guarantee,it can also be further classified to general independent guarantee and demand （independent） guarantee. In the former, the guarantor gives up the defenses which the creditor could exercise to the obligor based on the main contract;in the latter, the guarantor gives up further the defenses based on the guarantee contract.