Multi-component goods, according to market mechanisms under State management. Specific methods used include: statistical, analytical, comparative, synthetic, interpretative, historical, and other appropriate methods.
5. Purpose and tasks of research topic
Purpose of the thesis:
After systematically studying the theoretical basis and regulations on guarantees in civil law, mentioning some specialized guarantee fields, and reviewing and evaluating the current state of law and practice of guarantee activities to fulfill obligations in our country in recent times. Through studying positive law, we hope to be able to clarify some theoretical issues about the nature of guarantee activities in civil law, contributing a small part to the gradual improvement of this important institution.
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Thesis tasks:
- Clarifying basic theoretical issues on the nature and characteristics of performance guarantees in civil law;
- Research the relationship between guarantees and other civil obligation security measures (Pledge; Mortgage; Credit), thereby pointing out the advantages of guarantees;
- Research the current status of law and practice of guarantee activities and the requirements for legal regulations on guarantee. From there, propose amendments and improvements to legal regulations on guarantee.
6. Scientific value of the thesis
- The thesis is a scientific work, systematically researching the development process of regulations on guarantees in Vietnam, comparing with the same legal regimes of some countries in the world, so it will be very useful for researchers in the same scientific field.
- The thesis has raised the legal status and practical activities of guarantee in recent times, therefore, it will be useful for those who practice law such as Court officers, Legal officers of enterprises with guarantee activities.
- The thesis proposes and recommends perfecting the provisions on guarantees in civil law, contributing to the process of perfecting civil law in general and the guarantee regime in particular.
7. Thesis layout
This thesis is presented in three chapters as follows: Chapter 1. General overview of guarantee.
Chapter 2. Current status of Vietnamese law on guarantees.
Chapter 3. Practice and directions for improving the law on guarantees. Conclusion.
CHAPTER 1
GENERAL OVERVIEW OF GUARANTEE
1.1. Concept of guarantee
Guarantee is one of the measures to secure civil obligations stipulated in the 2005 Civil Code. Before the 2005 Civil Code, this institution was also stipulated in the 1995 Civil Code and before that, the Civil Contract Ordinance. In the following section, we will learn more about this institution in history. Like in Vietnam, countries around the world have considered guarantee as one of the important institutions of civil law. In most major Civil Codes in the world, there are specific provisions on guaranteeing the performance of civil obligations. Thus, it can be affirmed that measures to secure civil obligations in general and guarantee in particular are an important institution in civil law. To proceed to study this institution in depth, we first need to understand what a guarantee is?
In the Vietnamese Dictionary by author Nguyen Nhu Y, published by the Culture and Information Publishing House, guarantee is understood as the act of guaranteeing and taking responsibility before the law for someone [41, p.79]. This concept is general in nature for the nature of guarantee activities, but does not show the specific features of guarantee activities in civil law.
According to the Law Dictionary, Hanoi Encyclopedia Publishing House - 1999, civil guarantee is a commitment by a person or organization (called the guarantor) to the entitled party (called the beneficiary) to perform the obligation on behalf of the obligated party (called the guaranteed party), if when the deadline comes, the guaranteed party does not perform or does not properly perform the obligation. The parties can also agree to only guarantee the performance of the obligation on behalf of the obligated party.
when the guaranteed party is unable to perform its obligations. The obligations of the guarantee include principal, interest, fines and damages, unless otherwise agreed. The guarantee must be made in writing, certified by a State Notary Public or authenticated by a competent People's Committee if there is an agreement or the law so provides. When the guarantor has to pay the debt on behalf of the guaranteed party, they have the right to demand the refund of the amount paid. This concept fully demonstrates the nature and characteristics of the guarantee activity for the performance of civil obligations. However, the two concepts mentioned above are both considered from a linguistic perspective. From a legal perspective, the guarantee is defined as follows:
Article 366 of the 1995 Civil Code stipulates: Guarantee is a commitment by a third party (called the guarantor) to the entitled party (called the beneficiary) to perform an obligation on behalf of the obligated party (called the guaranteed party), if when the deadline comes, the guaranteed party fails to perform or improperly performs the obligation. The parties may also agree that the guarantor must only perform the obligation when the guaranteed party is unable to perform his/her obligation.
The guarantor may only guarantee with his own property or by performing work [3, p.85].
The guarantee by credit of socio-political organizations is implemented according to the provisions of Article 376 of this Code.
Article 376 of the 1995 Civil Code stipulates: grassroots socio-political organizations may provide credit guarantees for poor individuals and households to borrow a small amount of money from a bank or credit institution for production, business, or service provision in accordance with Government regulations.
Loans with credit guarantees must be made in writing, clearly stating: loan amount, loan purpose, loan term, interest rate, rights and obligations.
and the responsibilities of borrowers, banks, lending credit institutions and guarantor organizations [3, p.87].
The concept of guarantee stipulated in the 1995 Civil Code has the following notable points: guarantee is a measure of guarantee in terms of property - that is, the guarantor must use his own property to guarantee the obligation of the guaranteed person. The nature of the guarantee measure is personal guarantee, that is, a third party, using his reputation and honor, guarantees the obligation of the guaranteed person. In fact, the target that the beneficiary of the guarantee aims for is the entire property of the guarantor, not his reputation and honor.
Another point to note is that the credit guarantee of socio-political organizations is also classified as a guarantee measure (credit guarantee of socio-political organizations). The credit guarantee of socio-political organizations has a different nature compared to normal guarantees, so it needs to be separated into an independent guarantee measure.
Article 361 of the 2005 Civil Code stipulates on guarantee as follows: Guarantee is a commitment by a third party (hereinafter referred to as the guarantor) to the entitled party (hereinafter referred to as the beneficiary) to perform the obligation on behalf of the obligated party (hereinafter referred to as the guaranteed party), if when the deadline comes, the guaranteed party fails to perform or improperly performs the obligation. The parties may also agree that the guarantor is only required to perform the obligation when the guaranteed party is unable to perform its obligation [4, p.144].
The concept of guarantee in the 2005 Civil Code has basically overcome the limitations of the 1995 Civil Code: that is, guarantee is separated from other measures of guarantee, not causing confusion between guarantee and measures of guarantee obligation.
Thus, the concept of guarantee, no matter from which perspective (linguistic or legal; general or detailed), has the following basic characteristics:
- Guarantee is the commitment of a third party to perform an obligation on behalf of the guaranteed person (usually the obligated person) if the latter does not perform, does not perform correctly or does not perform fully. The third party here can be an individual or a legal entity. Normally, the third party, if an individual, must be a reputable person, have economic capacity and be a close relationship with the guaranteed person. For example: parents guarantee their children; children guarantee their parents (this relationship is implicitly recognized by law in some periods in history); siblings guarantee each other; close friends guarantee each other. In short, in practice, the person who guarantees for the guaranteed person must be someone with a special relationship. Therefore, this type of guarantee is usually without compensation.
For the guarantor being a legal entity: a legal entity can guarantee another legal entity in the performance of obligations, and can also guarantee for an individual. Normally, a legal entity, if not a credit institution, with professional guarantee activities, must be an enterprise closely related to the guaranteed person. For example: A General Corporation guarantees a credit contract of a member company; a parent company guarantees a production contract of a subsidiary company with credit institutions with professional guarantee activities, then the guarantee is a business, a type of service and has a fee. Nowadays, along with the growth of the economy, the number of civil transactions is increasing and the need to guarantee those transactions is also increasing, which has led to the growth of guarantee services of credit institutions.
- Guarantee is a personal guarantee. As mentioned above, the nature of guarantee is not that the guarantor uses his honor and reputation, but in fact uses his entire property to commit to perform the obligation on behalf of the guaranteed person if the latter does not perform or does not perform fully. In guarantee - personal guarantee, what the beneficiary is interested in is the guarantor and his financial capacity (the entire property that the guarantor has) and not directed at any specific property. On the contrary, in collateral (mortgage, pledge), what the entitled person is interested in is the specific property pledged, mortgaged, not the common property of the obligated person.
- For a long time, we have regulated the guarantee by the property of a third party, that is, when a third party guarantees a certain obligation, it must have a legal property to ensure the performance. In fact, with this regulation, the guarantee must be divided into personal guarantee; guarantee of property and property to secure the guarantee obligation. If it is simply a third party committing to the entitled person to perform the obligation for the guaranteed person if the obligation is due and the guaranteed person does not perform or is unable to perform, without indicating any specific property to guarantee his obligation, then this is a purely personal guarantee. At that time, the object that the guarantee recipient is aiming for is the entire amount of assets that the guarantor has. On the contrary, if the guarantor has provided a specific property to secure the obligation of the guaranteed person, then the guarantee is of a material nature and the guarantor is only required to perform the obligation within the scope equivalent to the value of the property provided as guarantee. If the secured property is not sufficient to perform the guaranteed obligation, the beneficiary has no right to request