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自1995年《担保法》颁布实施以来,有关保证这种担保方式的争论就一直没有停止过。在2000年最高人民法院颁布《关于适用〈担保法〉若干问题的解释》以来,围绕保证尤其是围绕保证期间的争论更加复杂化。大家对于保证期间的概念、性质、法律意义、保证期间与诉讼时效和除斥期间的关系、保证合同的诉讼时效等问题进行了多方面的探讨。这些立法缺陷给司法实践也带来了许多问题。因此有必要在理论上和法律规定上对保证中的若干问题进行认真的审视,以使理论界定更加准确,法律规定更加合理。
Ever since the promulgation of the Guarantee Law in 1995, the debate on how to guarantee such a guarantee has never stopped. Since the Supreme People’s Court promulgated the “Interpretation on Several Issues Concerning the Application of the Guarantee Law” in 2000, the controversy surrounding the guarantees, especially around the guarantee period, has been compounded. We discussed many issues such as the concept, nature, legal significance, the period of guarantee, the relationship between the limitation of action and the period of exclusion, and the limitation of action of the guarantee contract during the period of guarantee. These legislative defects also bring many problems to judicial practice. Therefore, it is necessary to carry out a careful examination of some issues in the guarantee in theory and in law so as to make the definition of the theory more accurate and the legal provisions more reasonable.