Abstract
Under current legislations in China, the wordings of terms in a surety contract is the key reference to determine whether the suretyship is general or joint and several. However, when the surety contract, as an ancillary contract, conflicts with the underlying contract, the court or the tribunal might encounter difficulties in determining the mode of suretyship due to the privacy of contract. Taking a PE case concerning shares-repurchasing disputes as an example, this paper scrutinizes relevant cases and views in Chinese contract law and guarantee law and advocates that various ways of interpretation should be used to solve this problem. In particular, the principle of good faith should be adopted to examine the result of interpretation, and principle of fairness should also be used to weigh the values where appropriate.
| Translated title of the contribution | The Determination of the Modes of Suretyship when the Contract of Suretyship Conflicts with the Underlying Contract |
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| Original language | Chinese |
| Pages (from-to) | 28-38 |
| Journal | Journal of Xihua University (Philosophy & Social Sciences Edition) |
| Volume | 2 |
| DOIs | |
| Publication status | Published - 2018 |