论无效保证合同中保证人的缔约过失责任

On the Fault Liability During Entering into a Contract of the Guarantee in the Void Suretyship Contract

保证合同既可能因主合同无效而无效，亦可因自身的原因而无效。导致无效的原因不同，保证人承担的责任也不同。若因保证人的过错致保证合同无效，债权人将丧失预期的担保，保证人则应承担缔约过失责任。其构成要件与赔偿范围与保证人承担的其他赔偿责任皆不相同。保证人所负责任的妥当与否影响着保证的担保功能的发挥。

Suretyship contract would be null and void not only because of being null and void of the principal contract but also because of its own. Surety would bear different liabilities according to different causes that would lead to null and void. If creditor lost guaranty depending on suretyship contract, which would be null and void, for fault in surety, surety should bear fault liability during entering into a contract. It is different for essence of forming and scope of compensation with other compensation liability. Suretys liability whether it is reasonable or not has a great influence on the development of guaranty function.