北京仲裁委员会

发布时间： Thu Jun 15 10:00:33 CST 2023

争议摘要

商事交易中，为实现债权人利益的最大化保障，要求债务人之外的第三人对债务一并承担责任并不罕见。其中，债务加入和保证就是典型。因为二者在概念上天然的相似性，以及第三人在实践中出于交易灵活性等诸多因素考虑所带来的意思表示的含混不清，其区分一直困扰司法实践。有鉴于此，本文将结合仲裁实践的实务案例，进一步细化讨论债务加入和保证的区分标准，以飨读者。

文意优先

“意思表示必借助语言表述，文义往往成为进入意思表示世界的第一道关口。”判断当事人所出具承诺的真实意思表示，必然离不开对文本内容的解读。一般认为，若承诺函或协议中有“担保”“保证”等字样的，可以认定为保证。若协议中写明“债务加入”“共同清偿”的，可以认定为债务加入。

例如，在某《平台业务合作协议》纠纷案件中，被申请人出具的《承诺函》明确约定“提供不可撤销的连带保证责任”，仲裁庭认定符合保证。又如，某影视合同纠纷中，各方已就主债权达成了《债务加入协议》，虽然被申请人抗辩其真实意思表示实为担保，仲裁庭立足条款文本，认定构成债务加入。

文字措辞固然是当事人真意的第一反映，却也需避免僵化解释。其一，保证、担保等措辞具有多义性，应结合情景进行解读；其二，鉴于实践中部分当事人对法律概念并不熟悉，文意表达的法律用语与其实际履行行为不符，则应结合案情等探求当事人的真意，而不拘泥于文字。

意思解释

文意措辞明确清晰，债务加入与保证之区分自不待言，然实践中常见第三方提供差额补足、到期回购、流动性支持等增信措施，协议中概无保证或债务加入之明示。此时，应该立足债务加入与保证的性质差异，从利益关系、履行顺位等角度对债务加入和保证进行区分。

从履行顺序看，因一般保证具有补充性，仅当债务人无法履行时，保证人方才承担责任，故若协议约定第三人履行债务的前提系因主债务人届期“无法”“不能”履行债务等，符合《民法典》687条的一般保证，可以与债务加入径行区分。反之亦然，鉴于保证人承担债务系因债务人届期未履行为前提，若承诺或协议直接表明由第三人代债务人履行债务，不受债务人届期不履行的约束的，例如约定第三人到期“代替履行”“代为支付”等，显然符合债务加入。

从利益关系看，一般认为第三人自身对债的履行具有实际经济利益的，倾向于认定为债务加入，否则为保证。之所以做此判断，主要考虑债务加入之责任负担相较于保证更重，遵循风险与收益平衡的理性人原则，推定从债之履行实际获益的第三人具有债务加入的意思表示。

如在某买卖合同纠纷中，第三方出具《还款协议》，约定“被申请人的法人：[某某（即第三方）]同意进行个人还款”。基于其公司法定代表人的身份，与案涉买卖合同具有实质性的利益关系，且申请人后续受偿的款项均由其支付的履行行为，认定符合债务加入。但值得注意的是，利益关系固然是债务加入的重要要素，但在个案中既非必要条件亦非充分条件，仅作为考量因素。

存疑推定

纵然从文意或者对文意的解释，能尽可能探求当事人缔约时真实的意思表示。但从实践情况看，部分当事人措辞表达的含混不清，造成真意探析几乎无处可寻。对于此种存疑的情况，根据《担保制度司法解释》第36条第3款，原则上推定为保证。

从责任承担看，存疑推定保证具有合理性。与保证相比较，债务加入没有保证期间的限制，除非特别约定，亦不享有追偿权，更毋论先诉抗辩权。一般认为，债务加入的责任承担明显高于保证。基于此，在当事人表意不明的情况下，考虑到各方利益的平衡，应当认定其构成保证而非债务加入。

随着实践中大量增信措施的出现，对保证与债务加入的区分提出了更大的挑战。从实践看，应把握当事人缔约时真实的意思表示，不以协议的名称，而是其具体约定的内容来认定其责任承担，原则上以文意优先，辅之以利益关系、履行顺序等判断标准。对于表意不明的情况，适用推定规则，以实现对债务加入与保证的区分。

Distinguishing joint assumption of debt and guaranty in arbitration

To achieve the maximum protection for creditors’ interests in commercial transactions, it is common for a third party to assume liability for the debt. This can typically take place in two ways: joint assumption of debt, or a guaranty. Judicial practice has always been plagued by the natural similarity in concept of the two, as well as the ambiguity in expression of intention caused by transaction flexibility and other factors by the third party. This article details the standard for distinguishing between joint assumption of debt and guaranty, based on arbitration precedents.

PRIORITY OF CONTEXT

It is generally believed that an undertaking letter or agreement may be identified as guaranty if it contains such words as “suretyship” or “guaranty”. If “joinder of debt” or “joint repayment” is specified, it may be identified as joint assumption of debt.

For example, in a dispute arising from a platform business co-operation agreement, the respondent’s letter of undertaking expressly stipulated the provision of “irrevocable joint and several guaranty liability”. This allowed the tribunal to deem the arrangement to be a guaranty.

In another dispute over a movie and television contract, the parties entered a joint assumption of debt agreement for their main contract. Although the respondent argued that its intention was, in fact, guaranty, the tribunal used clause texts to determine the clause to constitute a joint assumption of debt.

Although wording is undoubtedly the first and foremost reflection of parties’ intention, any rigid interpretation should be avoided. First, the polysemic nature of words such as “guaranty” and “suretyship” should be viewed in combination with the context. Second, as some may be unfamiliar with the legal concepts and the expressed legal language may be inconsistent with their actual performance, a tribunal should seek the parties’ true intentions by considering the facts without rigidly adhering to the wording.

INTERPRETATION OF MEANING

If the wording is clear, distinguishing between joint assumption of debt and guaranty would be all but self-evident. However, in practice, it is common for third parties to provide credit enhancement measures such as a deficiency agreement, repurchasing upon maturity and liquidity support, without including clear expressions of either guaranty or joint assumption of debt. As such, joint assumption of debt and guaranty must be differentiated by their nature, and from the perspectives of interest relationship and the sequence of performance.

In terms of the sequence of performance, due to the supplementary nature of general guaranty, a guarantor is responsible only when a debtor is unable to perform. Therefore, if it is agreed as a precondition of third-party performance that the principal debtor “cannot” or is “unable” to perform the obligation before expiration, the general guaranty, as defined under article 687 of the Civil Code, may be distinguished from joint assumption of debt.

Vice versa, as the assumption of obligation by a guarantor is subject to the non-performance of the debtor, if a commitment or agreement directly indicates that a third party will perform obligations without being bound by the non-performance of the debtor (e.g. an agreement that stipulates that a third party shall act or make payment in the debtor’s place), it would obviously constitute joint assumption of debt.

From the perspective of interest relationship, if the third party has actual economic benefits from the performance of the debt, it is generally deemed as joint assumption of debt; otherwise, it constitutes guaranty.

This is primarily because the liability arising from joint assumption of debt is heavier compared with guaranty. Under the assumption of the “economic man” who pursues a balance between risk and return, a third party who actually benefits from the performance of the obligation has a deduced intention of jointly assuming the debt.

For instance, in a dispute over a sales contract, a third party issued a repayment agreement stating the respondent’s legal person (i.e. the third party) agreed to repay the loan individually.

Based on his status as the company’s legal representative, he was deemed to have a substantial interest in the sales contract. Additionally, he had paid for the applicant’s subsequent compensation, so the contract was identified as being a joint assumption of debt.

It is worth noting that although the interest relationship is an important element of accession of obligations, it is neither a necessary nor a sufficient condition in a given case; it is only a consideration.

PRESUMPTION RULES

Even if the true intention of parties at the time of signing a contract can be derived from the texts or interpretation, in practice, wording can be ambiguous, resulting in the utter loss of the true intention. Where there is doubt, article 36.3 of the Judicial Interpretation on the Guaranty shall prevail, and the undertaking would be presumed as guaranty in principle.

In terms of liability, the presumption is reasonable. Compared with a guaranty, the joint assumption of debt has no limitation on guarantee period, and no right of recourse unless specifically agreed, let alone the right of prior action defence.

It is generally believed that the obligation of joint assumption of debt is significantly higher than that of guaranty. On this basis, if the parties’ intentions are unclear, it should be deemed to constitute guaranty, rather than joint assumption of debt, in order to balance the interests of all parties.

With the emergence of many credit enhancement measures, the challenge in distinguishing between guaranty and joint assumption of debt will only become greater.

In practice, the real intention of the parties, and the liability, should be ascertained not by the name of an agreement but by its actual content. In principle, the intention of the wording should be given priority, supplemented by the interest relationship, the sequence of performance and other criteria. If the intention is unclear, the rules of presumption shall be applied to distinguish joint assumption of debt from guaranty.

作者简介

作者 | 北京仲裁委员会/北京国际仲裁中心仲裁秘书刘静妮

本文刊载于《商法》2023年6月刊。如欲阅读电子版，欢迎浏览《商法》官网。