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为保护债权人债权、繁荣社会主义市场经济,担保法规定了连带责任保证制度。在实践中,连带责任保证制度也发挥着重大作用,不过却也存在债权人权利滥用、社会成本增加、有违民法“公平”原则和危及社会善良风俗等漏洞。基于债权人债权实现、保证人权利维护、纠纷解决成本最小化和公平原则、利益平衡原则以及善良风俗原则维护之考量,应完善赋予连带保证人“举证抗辩权”的立法。
In order to protect creditor’s rights and prosper the socialist market economy, the guarantee law provides a system of joint and several liability assurance. In practice, the joint responsibility guarantee system also plays an important role, but there are also loopholes in the abuse of creditor rights and social costs, which violate loopholes such as the principle of “fairness” and the danger to social goodness and customs. Based on the creditor’s rights realization, the guarantor’s rights protection, the dispute settlement cost minimization and the principle of fairness, the principle of balance of interests and the maintenance of good customs principles, we should improve the legislation that gives the joint guarantor the “proof of the right to prove”.