第三担保人的抗辩权体系

The System of the Third Guarantor’s Right of Defense

基于担保的从属性与补充性可为第三担保人建立完备的抗辩权体系。基于从属性,第三担保人原则上可向担保权人主张债务人享有的各种抗辩权,包括诉讼时效抗辩权、执行时效抗辩权,但不包括涉及债务人支付不能风险的抗辩权。债务人对债权人享有全部或部分消灭债务的形成权但不行使时,第三担保人基于从属性享有拒绝承担担保责任的抗辩权。这样的形成权不仅包括撤销权、抵销权,而且包括解除权、减价权。债务人放弃抗辩权不影响第三担保人的抗辩权,债务人放弃形成权的,担保人不得主张抗辩权。基于一般补充性,第三担保人享有催告抗辩权,其可区分为连带责任保证与债务加入。基于特殊补充性,第三担保人享有先诉抗辩权和先抵销抗辩权。先诉抗辩权本质上是先执行抗辩权,原则上仅一般保证人享有,例外情况下物上保证人也可主张。先抵销抗辩权是指在债权人单方对主债务人享有抵销权时应先通过抵销实现债权,否则第三担保人有权拒绝承担担保责任。与先诉抗辩权原则上只能由一般保证人享有不同,先抵销抗辩权适用于所有第三担保人。

Based on the subordination and supplement of the guarantee,a comprehensive system on the right of defense can be established for the third guarantor.Based on the subordination,the third guarantor may in principle claim all kinds of defenses enjoyed by the debtor,including the defenses of limitation of action and execution,but excluding the defenses involving the risk of the debtor’s inability to pay.When the debtor has the right of formation to wholly or partially extinguish the debt but not exercise it,the third guarantor has the right of defense to refuse to assume the guarantee responsibility on basis of subordination.Such rights of formation include not only the right of cancellation,the right of setting off,but also the right of rescission and the right of price reduction.The debtor’s waiver of the right of defense will not influence the third guarantor’s right of defense,but the debtor’s waiver of formation will lead to the guarantor’s incapability to exercise the right of defense.Based on the general supplement,the third guarantor has the right of defense on basis of the creditor’s failure to give a notice,which can be used to distinguish the joint and several guarantee and debt joining.Based on the special supplement,the third guarantor has the right of discussion and the right of defense on basis of that the debt should be set off first.The right of discussion is in essence the right of defense based on the fact that the debt should be executed first,and it is in principle only enjoyed by the general guarantor,and can be claimed by a guarantor secured by the mortgage in exceptional cases.The right of defense on basis of that the debt should be set off first means that when the creditor who unilaterally enjoys the right of setting off against the principal debtor should first realize the creditor’s right through setting off,otherwise the third guarantor has the right to refuse to undertake the guarantee liability.Unlike the right of discussion which can be in principle enjoyed by the general guarantor,the right of defense on basis of that the debt should be set off first can be enjoyed by all third guarantors.