债务人与债权人互负债务时保证人之抗辩权

Guarantor’s Right to Plea when the Debtor and the Creditor Are in Debt for Each Other

《民法典》第702条新增债务人对债权人享有抵销权时保证人享有抗辩权之规定,选择了抗辩权立法模式。从保证的补充性、从属性等性质出发,保证人直接行使主债务人对债权人的抵销权缺乏法理基础,侵害主债务人意思自由,并不具有更优于抗辩权模式的权利行使效果,且过度保护保证人。但该条规定的抗辩权行使应当区分类型予以适用。债务人对债权人享有抵销权时,保证人基于从属性享有抗辩权,《民法典》第702条的立法选择具有合理性,其赋予保证人防御性权利的同时,也解决了《担保法》第20条适用于此情形的解释困境。但该条文未涉及仅债权人对债务人享有抵销权之情形,一般保证人依据先诉抗辩权可在此情形下拒绝承担保证责任。故建议作出司法解释以明示,避免上述情形保证人无抗辩权的误解。

The Article 702 of the Civil Code chooses the right to plea legislative model by regulating that guarantor has the right to plea when the debtor has the right of set-off against the creditor. According to the complementarity and the subordination of guarantee, to directly exercise the right of set-off of the debtor against the creditor by a guarantor lacks the legal basis, infringes on debtor’s free will, does not lead to a better effect after the right has been exercised, and overprotects guarantor. When debtor has the right of setoff against the creditor, guarantor enjoys the right to plea based on subordination. The legislative model of Article 702 is reasonable, it solves the problem of the dilemma of Article 20 of guarantee law. However, the situation that only creditor enjoys the right of set-off against the debtor is not involved in the Article 702,and a general guarantor can refuse to undertake guaranty liability based on beneficium ordinis. Therefore, it would be better to make a regulation in judicial interpretations to avoid misunderstanding such situation in which guarantor does not enjoy the right to plea.