最高限額保證之確定與保證責任之消滅—以適用於民法第七五三條之一的問題為中心—

Abstract

最高限額保證已長期且普遍地為我國民間經濟活動所運用，並經最高法院以77年台上字第943號民事判例確立其實務地位，惟攸關債權人、債務人及保證人權益至鉅的最高限額保證之確定與保證責任之消滅等議題，國內相關研究卻寥寥可數。本文以最高限額保證之確定與保證責任之消滅為研究為主軸，並藉由與最高限額保證運作概念極為類似的最高限額抵押權之法理，以及主要參酌日本民法最高限額保證之規定，就最高限額保證之特殊確定事由與消滅事由逐一剖析，並以最高限額保證適用在民法第753條之1的諸多疑點加以探討。\n依據本文研究結果，最高限額保證之確定事由，包括保證人行使任意終止權、定有期間之最高限額保證其存續期間屆至、最高限額保證所擔保之不特定債務不繼續發生、債務人或債權人為法人有合併或分割且保證人不願續保、保證人死亡、主債務人死亡，以及民法第753條之1基於職務關係而為法人保證之保證人卸任其職務等；最高限額保證之消滅事由，包括人保、物保併存時債權人拋棄擔保物權、債權人片面允許主債務延期清償、債權人逾期未對主債務人為審判上請求、主債務經第三人承擔、債權人免除其他共同保證人之責任、最高限額保證確定後主債務喪失同一性等。\n實質上具備最高限額保證法定確定事由地位的民法第753條之1，係以未定期間之最高限額保證為其適用客體、以具備該條所定職務身分之自然人保證人為其適用主體，且最高限額保證契約當事人不得事先以個別商議方式，約定排除此項確定事由之適用。由於法人之董、監事或經理人等卸任事實與債權人知悉該事實之時間，極可能產生落差，導致債權人於該資訊落差期間內仍與法人發生債權債務關係，此時原則上應由保證人負擔債權人知悉其事之舉證責任，例外當債權人係銀行等金融機構時，則應將舉證責任倒置，方能合理衡平債權人與保證人之間的權益保護。

〝Line of Credit Guaranty〞 has been long and generally for the use of economic activities in our country, and been firmly established the practical position with Case No.: Taishentzu 943, 77adjusted by the Supreme Court.However, the relevant issues of the rights and interests, which is significantly effective for the creditor, the debtor and the guarantor in relation to the determination of〝 Line of Credit Guaranty〞 and the extinguishment of 〝Guarantee Liabilities〞, is still rare in the domestic relevant research.Hence, in this thesis, the main scheme of the research, which is basd on the determination of〝 Line of Credit Guaranty〞 and the extinguishment of 〝Guarantee Liabilities〞by means of the similar legal concept of 〝Line of Credit Mortgage〞as well as the same legal concept in Civil Code of Japan, analyze detailed the specific events in relation to the determination and the extinguishment of〝 Line of Credit Guaranty〞, and discuss several issues on 〝 Line of Credit Guaranty〞applied in Section 753 of Civil Code in R.O.C.\nBased on the results of this study, the events on the determination of〝Line of Credit Guaranty〞, are including the right of termination which is exercised at will by the guarantor , the duration of 〝Line of Credit Guaranty〞which is stipulated with the certain period is at maturity, non-occurrence in relation to the non-specific debt which is guaranteed by 〝Line of Credit Guaranty〞, the merger or the split of the debtor or the creditor , as the corporate body, with the condition of the facet that the guarantee is unwilling to provide the guarantee, the death of the guarantor, the death of the principal creditor, and the relief of the tenure of office for the guarantor who is guaranteed for the debt incurred by the corporate and based on the relationship of the tenure of office which is stipulated in Section 753 of Civil Code, etc .The events on the extinguishment of〝Guarantee Liabilities〞，is including of the disclaimer for the creditor to the right in rem on which the real right is secured in the condition of the coexistence of personal guarantee and real security、the unilaterally grant from the creditor for the principal debt to be discharged with an extension of time、the waiver for the creditor to enter judicial proceedings against the principal debtor within the specific period、the principal debt is transferred to the third party、 the discharge of other co-guarantors’ liabilities by the creditor，and the forfeit of the identity for the principal debit after the determination of 〝Line of Credit Guaranty〞，and so on.\nEssentially with the legal status which is provided with the legal events for the determination of 〝Line of Credit Guaranty〞, Section 753-1 of Civil code is stipulated with the applicable object of 〝Line of Credit Guaranty〞 with non-specific period of time ,and the applicable subject of the nature person with the appointment which is stipulated in this section , and that the exclusive of the applicability of events for the determination on this Section with the pre-commitment in advance for the counter parties of 〝Line of Credit Guaranty〞is not allowable.\nAs the time between the resignation of the directors, supervisors or other representatives of the corporate body and the acknowledgement of the fact as aforesaid for the creditor is most likely to incur the difference, which would results in the legal relationship of rights and obligations between the creditor and the debtor during the time of the gap for information. At this time, in general, the guarantor shall be responsible for the burden of proof for the acknowledgement the fact, exceptionally in the condition of the fact that the creditors, which are banks and other financial institutions, should be reversed the burden of proof, in order to be reasonably equitable on the protection of the rights and obligations between the creditor and the guarantor.