摘要： 《中华人民共和国民法典》第702条赋予了保证人以债务人有抵销权或撤销权为由拒绝承担保证责任的权利。该权利在性质上属于一时的抗辩权,目的在于保护保证人,使其免受因债务人嗣后行使抵销权或撤销权引发法律关系变动带来的不利后果。本条规定以债务人享有但未行使抵销权或撤销权为适用前提,其中“抵销权”包括法定或意定抵销权,“撤销权”主要指债务人因意思表示瑕疵得撤销主合同的权利。债务人放弃抵销权或撤销权的,保证人不得拒绝向债权人承担保证责任。本条可类推适用于债务人享有法定解除权的情形,不可类推适用于债务人享有任意解除权、撤回权、选择权以及债权人单方享有撤销权的情形。此外,若主合同约定违约金过分高于债权人遭受的损害,应当类推适用《中华人民共和国民法典》第701条的规定,允许保证人申请司法酌减。保证人是否主张本条赋予其的抗辩权,并不影响债务人行使其抵销权或撤销权。保证人与债务人之间的权利义务依其内部关系处理。

关键词: 保证合同, 抗辩权, 抵销权, 撤销权, 形成权

Abstract: The Article 702 of the Civil Code of the People's Republic of China grants the guarantor the right to refuse to assume the guaranty liability on the grounds that the debtor has the right of set-off or the right of revocation.This is a temporary defense in nature, aimed at protecting the guarantor from being adversely affected by changes in legal relations that may arise from the debtor's subsequent exercise of the forementioned rights.The application of this provision is based on the premise that the debtor has but has not yet exercised the right of set-off or the right of revocation.The term “right of set-off” as mentioned in this article includes both statutory and contractual set-off rights, and the “right of revocation” mainly refers to the debtor's right to rescind the principal contract due to defects in the expression of intent.If the debtor waives his right of set-off or the right of revocation, the guarantor may no longer refuse to assume the guaranty liability to the creditor.This article may be applied by analogy to situations where the debtor has a statutory right of termination, but it should not be applied by analogy to situations where the debtor has an arbitrary right of termination, the right of withdrawal, the right of choice in alternative obligation, or where the creditor unilaterally has the right of revocation.Furthermore, if the amount of liquidated damages stipulated in the principal contract is significantly higher than the damages suffered by the creditor, the provisions of Article 701 of the “Civil Code of the People's Republic of China” should be applied by analogy, allowing the guarantor to apply for judicial reduction of the amount of liquidated damages.Whether the guarantor raises defense under this provision under this article does not affect the debtor's exercise of their right of set-off or defense rights.The rights and obligations between the guarantor and the debtor will be handled according to their internal relationship.

Key words: Guarantee Contract, Right of Defense, Right of Set-off, Right of Revocation, Right of the Formation